COMMERCIAL APPELLATE DIVISION v. Dunlop International Limited & Anr.

Judgment

IN THE HIGH COURT AT CALCUTTA COMMERCIAL APPELLATE DIVISION ORIGINAL SIDE Before: The Hon’ble Justice Arijit Banerjee And The Hon’ble Justice Om Narayan Rai TEMPAPO – IPD 5 of 2025 IA No: GA – COM 1 of 2025 Glorious Investment Limited Vs. Dunlop International Limited & Anr. For the Appellant : Mr. Jaydip Kar, Sr. Adv. Mr. Siddharth Dey, Adv. For the Respondent No. 1 : Mr. Debnath Ghosh, Sr. Adv. Mr. Biswaroop Mukherjee, Adv. Ms. Mini Agarwal, Adv For the Respondent No. 2 : Mr. Siddhartha Lahiri, Adv. Sk. Sariful Haque, Adv. Hearing Concluded On : 01.09.2025 Judgment On : 04.11.2025 Om Narayan Rai, J.:-

1. This appeal is directed against an order dated June 11, 2025 whereby the Hon’ble Single Judge sitting in the Intellectual Property Rights Division of this Court has set aside the order dated July 4, 2024 passed by the Deputy Registrar of Trademarks in application for registration of trade mark filed by the applicant (i.e. the appellant herein).

2. By the said order dated July 4, 2024, the appellant’s application for registration of the mark “DUNLOP” had been allowed upon over ruling the objection raised thereto by the respondent no. 1 herein.

3. Being aggrieved by the said order dated July 4, 2024, the respondent no.1 approached this Court by filing an appeal being I.P.D.T.M.A. No. 17 of 2024 under Section 91 of the Trade Marks Act, 1999 (hereafter “the 1999 Act”) as aforesaid. The same has been disposed of by the Hon’ble Single Judge by passing the order impugned thereby setting aside the order dated July 04, 2024 passed by the Deputy Registrar of Trade Mark i.e. the respondent no. 2 herein and remanding the matter to the said respondent with a direction to reconsider the same after granting an opportunity of hearing to all the parties. Hence the present appeal. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 1:-

4. At the very outset, Mr. Ghosh, learned Senior Advocate appearing for the respondent no. 1 submitted that although the appeal has been levelled as “TEMPAPO-IPD” meaning thereby that it is an appeal from an order passed by a learned Judge sitting in an Intellectual Property Rights Division; the same is in fact a second appeal. Relying on the provision of Section 100A of the Code of Civil Procedure, 1908 (hereafter “the Code”), Mr. Ghosh submitted that in terms thereof where an appeal from an original or appellate decree or order had been heard and decided by a Single Judge of a High Court no further appeal could lay from the judgment and decree of such Single Judge. He took us through Section 18, Section 20, Section 21, Section 23 and Section 91 of the 1999 Act to indicate the various stages needed to be crossed before approaching this Court by way of an appeal under Section 91 of the 1999 Act.

5. Mr. Ghosh submitted that there is no provision for any second appeal in the 1999 Act. It was submitted that for an appeal to be carried from an order passed by an Hon’ble Single Judge of this Court, it must be one that has been permitted by the statute. He then invited our attention to Section 100A of the Code. It was submitted by Mr. Ghosh that the same clearly provided that even if an appeal against an order of an Hon’ble Single Judge had been provided for in the Letters Patent the same could not be filed because of the bar contained in Section 100A of the Code.

6. He next placed Rules 2(a), 2(d) and 2(o) of the Intellectual Property Rights Division Rules of the High Court at Calcutta, 2023 (hereafter “the said Rules”) and submitted that a meaningful reading of the said provisions clearly indicates that no second appeal could have been filed against an order passed by an Hon’ble Single Judge of this Court in an appeal preferred under Section 91 of the 1999 Act.

7. In support of the proposition that Section 100A of the Code specifically excluded a Letters Patent appeal, he relied on the following decisions :– i) Kamal Kumar Dutta & Anr. vs. Ruby General Hospital Limited & Ors.1; ii) P.S. Sathappan vs. Andhra Bank Ltd. & Ors.2; iii) Vasanthi vs. Venugopal3;