CHC Bars DB Appeals from Single Judge Orders in TM Registry Appeals
SpicyIP
A long-standing procedural puzzle in trademark appellate practice has resurfaced, this time before the Calcutta High Court. In a decision dated 4 November 2025, the Court in Glorious Investment Limited v. Dunlop International Limited has held that no Letters Patent Appeal lies from a Single Judge’s order passed under Section 91 of the Trade Marks Act. Mohamed Thahir Sulaiman writes on the ruling, explaining how it has reopened questions of consistency across High Courts and may well require Supreme Court intervention. Thahir is a third year BALLB (Hons) student from the National Law School of India University, with interests in corporate law and technology law.
Image from hereCHC Bars DB Appeals from Single Judge Orders in TM Registry Appeals
By Mohamed Thahir Sulaiman
In its recent decision dated 4 November 2025, the Calcutta High Court (“CHC”) in Glorious Investment Limited v Dunlop International Limited held that a Letters Patent Appeal (“LPA”) is not maintainable against an order passed by a Single Judge in appeal under Section 91 of the Trade Marks Act, 1999 (“TMA”). The Court held this by reading the provision along with Section 100A of the Code of Civil Procedure, 1908 (“CPC”) which prohibits any appeal from an original or appellate decree or order which is heard and decided by a Single Judge of a High Court. In doing so, the CHC diverged from an earlier decision of the Delhi High Court (“DHC”) in Promoshirt SM SA v Armassuisse, which took the opposite view, thereby creating the need for a possible Supreme Court (“SC”) clarification (discussed here). This post examines the reasoning adopted by the CHC in light of the earlier DHC ruling and highlights two key shortcomings that the CHC appears to have overlooked.
Background:
The Appellant, Glorious Investment Limited, had applied for registration of the mark “DUNLOP” before the Deputy Registrar of Trademarks, who accepted the application. In an appeal of this order, filed under Section 91 by Dunlop International Limited, the Single Judge of the CHC reversed the Deputy Registrar’s decision and rejected the Appellant’s application.
The issue in the present appeal stems from the fact that, while Section 91 provides for a first appeal to a Single Judge of the High Court, the TMA is silent on whether a further appeal lies from such a decision. Earlier, following the SC’s reasoning in National Sewing Thread Co. Ltd. v. James Chadwick & Bros. Ltd. (1953), the settled position was that when a right of appeal to the High Court is conferred by a statue but the same does not specify whether a second appeal is permissible (as was the case under Section 76 of the Trade Marks Act, 1940), the procedure for such appeals would be governed by the Letters Patent and rules of the High Court. Accordingly, where the High Court’s Letters Patent (colonial instruments establishing High Courts such as those at Bombay, Calcutta and Madras) provided for an intra-court appeal, an LPA could be maintained, even though the specific statute was silent on the matter.
However, this position changed in 2002 with the amendment of Section 100A of the CPC, which brought several changes into the CPC with the intention of providing “speedy justice to the people”. Section 100A provides that, notwithstanding anything contained in any Letters Patent, no further appeal shall lie from the judgment and decree of a Single Judge who has heard and decided an appeal from an original or appellate decree or order.
Additionally, Section 91 of the TMA (after the 2021 amendments) provides that an appeal may lie from an order or decision of the Registrar to the High Court, but remains silent on whether a further appeal may be preferred. The central question in this appeal, therefore, is how Section 91 of the TMA be construed in light of Section 100A of the CPC, and whether an LPA is maintainable against an order passed by a Single Judge under Section 91 of the TMA.
Court’s Reasoning
The CHC rejected the Appellant’s arguments and held that an LPA does not lie from a decision of a Single Judge passed under Section 91 of the TMA. In doing so, the Court provided a two-fold reasoning:
First, the CHC concluded that the Deputy Registrar of Trademarks constituted a “court”, as it satisfied the “trappings of a court” test. The test was developed in Bharat Bank v Employees of the Bharat Bank (Supreme Court, 1950) to determine whether a body exercising judicial functions would constitute a court. This determination was made by looking at the incidental powers exercised by the body which was typically exercised by courts, such as power to summon witnesses, adjudicate disputes, and so on. Such a test becomes crucial in the present case because if the Registry is not regarded as a “court”, then an appeal against its order under Section 91 of the Act cannot fall under the ambit of the decree or order against which the Section 100A bar applies. This distinction between the orders of a court and other adjudicating authorities was explained in Nahar Industrial Enterprises Ltd vs Hongkong & Shanghai Banking Corp (Supreme Court, 2009)
The CHC held that based on this, an LPA would be barred by virtue of Section 100A of the CPC. In reaching this conclusion, the CHC relied on the SC’s decision in Kamal Kumar Dutta & Anr. v. Ruby General Hospital Ltd. & Ors. (2006), which held that the Company Law Board (“CLB”), constituted under the Companies Act, 1956, functioned as a civil court since it possessed all the trappings of one. Drawing an analogy, the CHC observed that Section 127 of the TMA confers upon the Registrar all the powers of a civil court for the purpose of proceedings under the Act. Further, the Registrar adjudicates a lis between the parties – hearing evidence, scrutinising applications, examining facts in light of the evidence, and ultimately passing an order that determines the rights and liabilities of the parties (Para 30).
Second, the Court noted that unlike the Trade and Merchandise Marks Act, 1958, where Section 109(5) (the provision corresponding to Section 91 of the TMA) expressly provided for a further appeal from the order of a Single Judge of the High Court, no similar provision exists under the TMA, 1999. In observing that the “deletion of a provision from a statute is to be given due weightage in probing the legislative intent” (Para 33), the CHC inferred that the legislature’s intention behind deleting the second-appeal provision was to exclude the possibility of a further appeal under the present Act.
Analysis and Shortcomings
With this two-fold reasoning, the CHC dismissed the appeal and diverged from the view taken by the DHC in Promoshirt. However, it is important to note that while the CHC acknowledged the reasoning adopted by the DHC, it did not directly engage with it, but instead presented an independent, alternative basis for its conclusion. This is significant because, in failing to address the DHC’s reasoning, the two-fold reasoning offered by the CHC overlooks specific arguments that were not rebutted, thereby undermining its decision(for reasons we will see below). This can be seen in the following two shortcomings.
Firstly, the CHC fails to engage with the well-established distinction between a “court” and a “civil court”, which was central to the DHC’s reasoning. Relying on the SC’s decision in Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai Banking Corporation (2009), the DHC reiterated that although every civil court is a court, the converse does not hold. On this basis, the DHC reasoned that the term “order” in Section 100A of the CPC must be interpreted in light of Section 2(14) of the CPC, which defines an “order” as a formal expression of a decision of a civil court. Consequently, when Section 100A bars an appeal from an “order”, the provision applies only to orders passed by civil courts, and not by any authority classified by the court.
Given this, the DHC questioned whether the “trappings of a court” test was even relevant for determining the applicability of Section 100A. The DHC held that even if the test was applied, the registrar would still not qualify as a court. The CHC decision reproduces this point (Para 16), but does not engage with it; rather, it skips over the conceptual difference between “civil court” and “court” and jumps right into conducting the test.
This omission becomes particularly significant when considering the basis of the CHC’s reasoning. The CHC states that “what really constitutes ‘trappings of a court’ was succinctly explained by the Hon’ble Supreme Court in Associated Cement Companies Ltd. v. P.N. Sharma & Anr. (Para 23). However, it fails to acknowledge that this case was decided in the context of Article 136, not Section 100A of the CPC. This omission is critical because it exemplifies the distinction between a “court” and a “civil court” emphasised by the DHC.
Moreover, in concluding that the Registrar of Trademarks qualifies as a court, the CHC does not address or rebut the specific reasoning of the DHC. The DHC, relying on the Bombay High Court’s decision in The Anglo-French Drug Co. (Eastern) Pvt. Ltd. v. R.D. Tinaikar, observed that the mere possession of some trappings of a court does not, by itself, make an authority a court. Despite citing this point (Para 16), the CHC ultimately reached the opposite conclusion without explaining why the DHC’s reasoning was incorrect or inapplicable.
Secondly, the CHC erred in the heavy reliance it placed on the SC’s decision in Kamal Kumar Dutta without engaging with the DHC’s reasoning regarding its limited applicability. While Kamal Kumar Dutta held that the CLBs constituted under the Companies Act, 1956 was a Court, thereby attracting the bar under Section 100A of the CPC, the DHC had specifically distinguished that decision on the ground that the Companies Act, 1956 (unlike the TMA) contained an explicit deeming clause under Section 10E(4D), which deemed the CLB to be a civil court. The absence of a similar deeming provision in the TMA, according to the DHC, rendered Kamal Kumar Dutta inapplicable to proceedings under Section 91 of the TMA.
Interestingly, while the CHC judgment acknowledges the existence of such a deeming clause in the Companies Act (Para 22), it gives no consideration to its absence in the TMA and fails to engage with the DHC’s reasoning on this distinction. The CHC thus applies Kamal Kumar Dutta, without engaging with the distinction drawn up by the DHC on the same.
Concluding Remarks
These two shortcomings do not completely negate the reasoning provided by the CHC. However, they do significantly undermine it and highlight the many complexities that the CHC decision did not account for. Regardless, there is an urgent need for the SC to intervene and issue a clarification.
This urgency becomes clear when one considers the potential implications of the CHC’s order on the scope of LPAs. While LPAs and further appeals can indeed be misused and may at times run contrary to the objective behind the 2002 amendment to Section 100A (i.e.) ensuring “speedy justice”, it is equally important to recognize the procedural significance of LPAs for litigants seeking to challenge capricious or arbitrary decisions of a Single Judge. A widened bar on LPAs would force litigants to approach the Supreme Court directly under Article 136, causing undue costs, delays, and a significantly higher threshold for intervention for litigants.
This concern becomes significant when viewed alongside the potential ramifications of the CHC’s expansive application of the “trappings of a court” test. Although the present decision is confined to the TMA, its reasoning may well be extended by future courts to treat other authorities, such as the Registrar under the Geographical Indications of Goods (Registration and Protection) Act, 1999, or the Controller under the Designs Act, 2000 as “courts,” thereby triggering the Section 100A bar. The cumulative effect of such developments would be to shrink existing appellate avenues and introduce barriers to LPAs in areas where none presently exist.