Divergence Between Calcutta and Delhi High Courts on Section 124 and 47 TMA

Conflict in Jurisprudence: Section 124 and Non-Use Cancellation Under Section 47

A growing divergence between the Calcutta and Delhi High Courts has emerged regarding the interpretation of "rectification proceedings" under Section 124 of the Trade Marks Act, 1999, particularly in the context of non-use cancellation petitions filed under Section 47.

The Calcutta High Court has held that a Section 47 non-use cancellation petition constitutes a rectification proceeding under Section 124, thereby enabling a party to seek a stay of parallel infringement proceedings. In contrast, the Delhi High Court has taken the view that Section 47 proceedings, unless formally converted or aligned with a rectification petition under Section 57, do not automatically trigger the bar under Section 124.

"The question is whether the proceeding is one 'for the rectification of the register' within the meaning of Section 124,"

This split has significant tactical implications for litigants. Where a defendant files a non-use cancellation, the ability to secure an automatic stay of infringement proceedings depends on the jurisdiction. In practice, this has led to forum shopping and inconsistent outcomes. The issue turns on statutory interpretation: whether Section 47, read with Section 57, falls within the ambit of Section 124, which bars courts from entertaining challenges to registration during pending rectification proceedings. Until resolved by a coordinate bench or the Supreme Court, practitioners must carefully assess jurisdictional precedents when formulating litigation strategy in trademark disputes involving cancellation and infringement.