The Madras High Court has reaffirmed in a recent appeal case, ACE Foods Ltd v The Registrar of Trade Marks & Anr (2026), that a trademark cannot be deemed abandoned simply based on the party’s delay in filing an affidavit of evidence.
The court was hearing an appeal against the dismissal of ACE Foods’ interlocutory petition as part of opposition proceedings in a trademark dispute, stemming from a registration application initially filed on 3 December 2018.
ACE Foods filed the application to register a trademark for its packaged snacks and ready-to-eat products “Modern Kitchens’ Delite in Every Bite”, and claimed it had been used since 9 May 1984.
After the ACE Foods application was published in the Trademark Journal, Modern Snacks opposed the registration and opposition trademark proceedings began. ACE Foods filed its counter statement, followed by an unattested affidavit of evidence due to the covid-19 pandemic. After Modern Snacks filed its reply, the proceedings went into hibernation.
ACE Foods revived the proceedings after filing an interlocutory application, which was dismissed by the registrar of trademarks, who also declared the trademark application had been abandoned due to the failure of ACE Foods to file its affidavit of evidence after Modern Snacks filed its reply.
The registrar of trademarks argued that since the affidavit of evidence filing was unattested it could not be considered. It also argued that as per the rulings of Supreme Court of India, for limitations expiring between 15 March 2020 to 28 February 2022, there shall be an extension of 90 days from 1 March 2022. Hence, ACE Foods should have filed the proper affidavit of evidence by 30 May 2022.
ACE Foods argued that the affidavit of evidence was filed well within the limitation period, and after no further inquiry by the trademarks registry, ACE Foods paid the required fees to expedite the matter and also filed a fresh affidavit of evidence with a new authorised signatory, due to the demise of the previous one.
The law provided for rules related to the manner and timeline of the filings and not for an application to be deemed abandoned if the manner and timeline was not adhered to, ACE Foods added.
Modern Snacks said the law prescribed strict timelines and not adhering to them should result in the party losing their right. Modern Snacks also agreed with the registrar of trademarks’ arguments.
The Madras High Court said it was understandable that ACE Foods first filed an unattested affidavit of evidence, as it was during the height of the global pandemic and the company could not be faulted for this. The court also said this made it clear that ACE Foods had intended to file its affidavit of evidence.
In reaching its ruling, the court relied on these cases Kangaro Industries v V-Gaurd Industries (2025), Raj Vardhan Patodia (HUF) v Registrar of Trade Marks & Anr (2025), M/S V-Guard Industries Ltd v The Registrar of Trade Marks & Anr (2023).
The court said precedents in these cases had a common underlying interpretation that trademark rules should not be adhered to with such rigidity that it defeated the substantive rights of parties. In the present case, the court also observed that Modern Snacks replied to the affidavit of evidence by ACE Foods, it is too late for the authorities to deem the application abandoned.
The court held that the revised affidavit of evidence filed by ACE Foods signed by the new authorised signatory to fall “within the realm of procedure and pedantic interpretation should not be deployed”.
The court said that, “while dealing with the issue of abandonment, the attitude of the parties will play a major role” and the fact that ACE Foods filed an affidavit of evidence even during the pandemic, showed its intent to continue the process and not abandon its application.
The manner and timeline of filings in trademark prosecution did not provide the consequence of deemed abandonment for non-adherence, the court said. Where such an adverse consequence is applied under the rule, it is ultra vires the Trade Marks Act, 1999.
The court upheld ACE Foods’ appeal, set aside the registrar of trademarks order and granted the company six months to finalise its application.
