By Anuradha Gandhi and Rishabh Gupta
INTRODUCTION
In a significant procedural ruling in Anil Shah Trading as Le Shark India & Anr. v. Le Shark Apparel Limited & Anr.[1], the Bombay High Court has clarified that an appeal under Section 13(1-A) of the Commercial Courts Act, 2015 is maintainable against a final order passed in a trademark rectification petition, even though such a petition is not a suit, and even though the order is not one of the categories specifically enumerated in Order XLIII of the Code of Civil Procedure, 1908. The ruling directly addresses a structural gap that has emerged since rectification proceedings under the Trade Marks Act came to be filed before High Courts as petitions rather than suits, following the abolition of the Intellectual Property Appellate Board.
BACKGROUND
Le Shark Apparel Limited, United Kingdom, had instituted a Rectification Application under Sections 47 and 57 of the Trade Marks Act, 1999, seeking removal of the Appellants’ registered trademark “LESHARK” (Registration No. 466002, Class 25, covering articles of clothing including boots, shoes, slippers, scarves and raincoats) from the Register of Trade Marks. The rectification proceedings had originally been filed before the erstwhile Intellectual Property Appellate Board and stood transferred to the High Court.
The Respondent’s case was that the Appellants had not used the mark, that the invoices produced to establish user were fabricated, and that the adoption of the mark was itself dishonest and lacking in bona fide intent. By order dated 14/10/2025, the Single Judge made the Commercial Miscellaneous Petition No. 538 of 2022 absolute, holding that Section 57 of the Trade Marks Act confers discretion on the Court to preserve the purity of the Register, and recording a prima facie finding that the impugned trademark had been fraudulently adopted by the Respondents. The Registrar of Trade Marks was directed to remove/expunge Trademark No. 466002 from the Register.
Aggrieved, the Appellants filed a Commercial Appeal under Section 13 of the Commercial Courts Act, 2015. Before the appeal could be heard on merits, the Respondents raised a preliminary objection that the appeal itself was not maintainable.
KEY LEGAL PROVISIONS IN INDIA
The starting point is Section 13(1-A) of the Commercial Courts Act, 2015, which permits an appeal against a “judgment or order” of a Commercial Division, subject to a proviso restricting appeals against orders to only those specifically enumerated under Order XLIII of the Code of Civil Procedure, 1908, and Section 37 of the Arbitration and Conciliation Act, 1996. Since the impugned order arose from a miscellaneous petition for trademark rectification under Sections 47 and 57 of the Trade Marks Act, and no such order is enumerated in Order XLIII, the Respondents contended that the appeal was incompetent unless the order could be shown to be a “Judgment”/“Decree” in the strict sense contemplated under Section 2(2) of the Code of Civil Procedure, which they argued only a suit could produce.
Relying on the Division Bench’s earlier ruling in Skil-Himachal Infrastructure & Tourism Ltd. & Ors. v. IL&FS Financial Services Ltd.[2], and on rent-control precedents such as Madhavprasad Kalkaprasad Nigam v. S.G. Chanraverkar[3] and Nalinakhya Bysack v. Shyam Sunder Haldar & Ors.[4] (where orders in special-statute proceedings were held not to be “Decrees”), the Respondents argued that an order passed on a petition, as opposed to a suit, could never qualify as a Decree, and the appeal must therefore fail at the threshold.
The Appellants, in response, argued that the order finally determined the rights of the parties and was therefore a “Judgment,” relying on Section 21 of the Commercial Courts Act, which gives the Act overriding effect over inconsistent laws, and on the Supreme Court’s decision in MITC Rolling Private Limited & Anr. v. Renuka Realtors & Ors.[5], where an appeal from an order passed on a miscellaneous petition under the Patents Act, 1970 had been held maintainable before the Commercial Appellate Division.
ANALYSIS: KEY OBSERVATIONS
- An order finally determining rights, even on a petition, amounts to a “Judgment”/“Decree” for Section 13(1-A) purposes. The Bench held that an order passed on a Commercial Miscellaneous Petition under Sections 47 and 57 of the Trade Marks Act, which conclusively determines the rights of the parties by directing removal of a mark from the Register, bears the traits of a “Decree” and, at minimum, constitutes a “Judgment” within the meaning of Section 13(1-A). The Bench reasoned that “Judgment” is the statement of the Judge in support of either a decree or an order, and that the legislature’s deliberate use of the word “Judgment,” introduced by the 2018 amendment in place of the earlier word “Decision,” reflects a considered choice to permit appeals against final adjudications without the restriction that applies to mere interlocutory orders.
- Commercial disputes are not confined to “suits.” The Bench noted that the Commercial Courts Act itself uses the expressions “suit,” “application,” and “proceedings” interchangeably in relation to commercial disputes, in Sections 2(c), 6, 7, 11 and 12, and that jurisdiction over commercial disputes is conferred in respect of suits and applications alike. A final adjudication of rights in a rectification petition therefore falls squarely within the appellate framework of Section 13(1-A), regardless of the nomenclature of the proceeding.
- The proviso restricts appeals only against interlocutory orders, not against final judgments. The Bench clarified that the proviso to Section 13(1-A), which confines appealable orders to those enumerated under Order XLIII of the Code of Civil Procedure and Section 37 of the Arbitration and Conciliation Act, 1996, operates only in respect of orders that do not finally determine the lis between the parties. It does not curtail the right of appeal against a judgment that conclusively decides the rights of the parties.
- Nalinakhya Bysack The Bench distinguished the rent-control precedent relied upon by the Respondents on the ground that the order under consideration there did not finally determine the lis between the parties, unlike the rectification order in the present case, which conclusively decided the fate of the trademark as between the parties.
- Skil-Himachal reconciled, not overridden. The Bench clarified that its own earlier ruling in Skil-Himachal was not intended to restrict Section 13 appeals only to decrees in the strict Code of Civil Procedure sense; rather, that decision too recognised the twin categories of “Judgment” and “Order” under Section 13(1-A), with only orders, and not judgments, being subject to the Order XLIII restriction.
CONCLUSION
With the abolition of the Intellectual Property Appellate Board, rectification, cancellation, and similar proceedings under IP statutes are now instituted before High Courts as petitions rather than suits. Had the Respondents’ narrower reading prevailed, a litigant aggrieved by a final order expunging a registered trademark, potentially on the strength of a prima facie finding of fraud, would have had no first appeal at all, since such an order would neither be a “Decree” arising from a suit nor an “order” enumerated in Order XLIII of the Code of Civil Procedure. This ruling closes that gap by anchoring appealability to the substance of the order, that is, whether it finally and conclusively determines the rights of the parties, rather than to the procedural label under which the proceeding was instituted, while still preserving the proviso’s restriction for genuinely interlocutory orders. The result is that litigants in IP rectification matters, and by extension other commercial disputes initiated by application or petition, retain a first appellate remedy against final adjudications, consistent with the broader object of the Commercial Courts Act.
[1] Anil Shah Trading as Le Shark India & Anr. v. Le Shark Apparel Limited & Anr., Commercial Appeal (L) No. 40525 of 2025 in Commercial Miscellaneous Petition No. 538 of 2022, with Interim Application (L) No. 40663 of 2025, High Court of Judicature at Bombay, Ordinary Original Civil Jurisdiction, Commercial Division (Bharati Dangre & Manjusha Deshpande, JJ.), decided on 18th April, 2026.
[2] Skil-Himachal Infrastructure & Tourism Ltd. & Ors. v. IL&FS Financial Services Ltd., 2022 SCC OnLine Bom 3152.
[3] Madhavprasad Kalkaprasad Nigam v. S.G. Chanraverkar, 1950 ILR Bom 326.
[4] Nalinakhya Bysack v. Shyam Sunder Haldar & Ors., (1953) 1 SCC 167.
[5] MITC Rolling Private Limited & Anr. v. Renuka Realtors & Ors., 2025 SCC OnLine SC 2375.