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To summarise,therefore,a trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade RPC |
The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market RPC |
As between two competitors who are each desirous of adopting such a mark,"it is,to use familiar language,entirely a question of who gets there first RPC |
Gaw Kan Lye v RPC |
Saw Kyone Saing,AIR 1939 RPC |
Rang 343 RPC |
FB).Registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration RPC |
It does,however,facilitate a remedy which may be enforced and obtained throughout the State and it established the record of facts affecting the right to the mark RPC |
Registration itself does not create a trade mark RPC |
The trade mark exists independently of the registration which merely affords further protection under the statute RPC |
Common law rights are left wholly unaffected RPC |
Priority in adoption and use of a trade mark is superior to priority in registration RPC |
It was next contended by Mr ARG |
Shavaksha that the respondent company had itself shown Kipre and Co ARG |
Private Ltd.,as ARG |
the proprietors of the mark on the labels bearing the mark "Monarch" on the different kinds of its food products and,therefore,the respondent company had no right to apply for registration in its favours as if it was the proprietor thereof ARG |
It was conceded by Mr ARG |
Shah that the labels which were used on the food products manufactured by Kipre and Co ARG |
Private Ltd,did bear the name of Kipre and Co ARG |
Private Ltd.immediately below the mark "Monarch" and that the respondent company's name was printed below it as sole distributors ARG |
Mr ARG |
Shah,however,contended that by an agreement Ex ARG |
F.made between the respondent company and Kipre and Co ARG |
Private Ltd.in 1951 ARG |
it was clearly provided that the mark "Monarch" belonged to the respondent company,that Kipre and Co ARG |
Private Ltd.were only to manufacture the food products as ordered by the respondent company and that the food products so manufactured were to be bottled and packed by them for its use and benefit and that,therefore,in spite of Kipre and Co.'s name appearing on the labels,the respondent company was the true proprietor ... |
Now,once again turning to the provisions of s.18 sub-section (I),it is clear that only a person claiming to be the proprietor of a trade mark used by him or proposed to be used by him could make an application to the Registrar for the registration thereof STA |
According to this provision,not only a person should claim to be the proprietor of a trade mark but he should prove that he had used it as such proprietor on his goods Ratio |
Then turning to the label as it stood at the date of the application,two names appeared on the label,one of Kipre and Co.and the other of the respondent company Ratio |
If these two names had stood by themselves without any further description of either of them,it could be said that both Kipre and Co.and the respondent company were jointly the owners of the mark as well as the owners of the goods to which the label was affixed Ratio |
But,that is not the case Ratio |
The respondent company is described as the sole distributors on the label Ratio |
The reasonable inference that could be drawn from this description surely is that the goods were the property of Kipre and Co.and so also the mark Ratio |
If the respondent company was really the proprietor of the mark and also the owner of the goods one would expect some such words as "Manufactured by Kipre and Co.for Brandon and Co.,Private Ltd Ratio |
In the absence of any such words,a person buying any of these goods on reading the label would naturally believe that what he was buying was the property of Kipre and Co.which was selling its goods under the mark "Monarch Ratio |
It is true,as contended by Mr Ratio |
Shah,that even distributors and sellers may have marks of their own,but then,there are ways and ways of indicating on the label itself that the mark embodied therein is the mark belonging to such distributor or seller Ratio |
Obviously,therefore,on the label as it stood,it could not be said that the respondent company was the proprietor of the mark "Monarch" nor could it be said that the mark was used by the respondent company as proprietor thereof Ratio |
Applying the principle of deemed equivalence we may clarify that if the SSI unit wrongly affixes a trade mark of another person,be it registered or not,or if it uses the trade mark of an ineligible person then such default would not be eliminated by the above principle of deemed equivalence embodied in S.28 of the Trad... |
Before concluding we may refer to the Judgment of this Court in the case of Commissioner of Central Excise,Mumbai v PRE |
Bigen Industries Ltd.2006 (197 PRE |
ELT PRE |
305 2006 Indlaw SC 546.In that matter a show cause notice was issued calling upon the assessee to show cause why the exemption be not denied to the assessee PRE |
In para '19' of the show cause notice the authority accepted the existence of a deed of assignment PRE |
However,the show cause notice denied the exemption on the ground that Notification No.140/83-CE did not make any distinction between a brand name owned by a person in India or abroad PRE |
In the present case,the facts are entirely different Ratio |
In the present case,there is no deed or assignment from M/s Ratio |
Ltd.to the M/s Ratio |
Meghraj Biscuits Industries Ltd.(appellants herein).As stated above,there is no proof of acquisition on payment or consideration by the appellants to M/s Kay Aar Biscuits (P) Ltd Ratio |
In the present case,there is no evidence of assignment or licence from M/s Ratio |
ltd.to the appellants Ratio |
In the present case,we are concerned with the retrospective effect of the certificate issued by the Registrar of Trade Marks on 30.6.2000 with effect from 30.9.91 Ratio |
In the circumstances,the judgment of this Court in the case of Bigen Industries 2006 Indlaw SC 546 (Supra) has no application Ratio |
For the aforestated reasons,we do not find any merit in these civil appeals Ratio |
Before concluding we may point out that we do not wish to express any opinion on the subsequent events which have taken place in this case Ratio |
Our judgment is confined only to the period in question under the impugned show cause notices Ratio |
Accordingly,the civil appeals stand dismissed with no order as to costs RPC |
Appeals dismissed RPC |
This appeal, by special leave, has been preferred against the judgment and order dated 23 February 2005 of Bombay High Court (Aurangabad Bench), by which the appeal preferred by the appellants was dismissed and their conviction under Section 304-B read with Section 34 IPC and sentence of 7 years RI imposed thereunder b... |
The deceased Bhimabai was daughter of PW.1 Tukaram Eknath Tambe resident of village Sanjkheda FAC |
and she was married to appellant no. 1 FAC |
Appasaheb son of Sheshrao Palaskar about two and half years prior to the date of incident which took place on 15 September 1991 FAC |
The appellant no. 2, Kadubai is the mother of the appellant no. 1 and both the appellants were residing in the same house in village Palshi FAC |
According to the case of prosecution, a sum of Rs FAC |
5000 and some gold ornaments had been given at the time of marriage of Bhimabai FAC |
For about six months Bhimabai was treated well but thereafter the accused started asking her to bring Rs FAC |
1,000-1,200 from her parents to meet the household expenses and also for purchasing manure FAC |
Whenever Bhimabai went to her parental home, she used to tell her parents that her husband and mother-in-law (accused appellants) were harassing her and used to occasionally beat her FAC |
Her father PW.1 Tukaram along with some of his relatives went to the house of the accused and tried to persuade them not to ill-treat Bhimabai FAC |
Thereafter, the accused treated Bhimabai properly but after about four months they again started harassing her FAC |
A few days before Nag Panchami festival Bhimabai came to her parental home and complained that the accused were not giving her proper food, clothing and even footwear FAC |
She also told her parents that her husband had asked her to bring an amount of Rs.1,000-1,200 for the purpose of household expenses and manure FAC |
The case of the prosecution futher is that in the evening of 15 September 1991 a person came from village Palshi on a motorcycle and informed PW.1 Tukaram that Bhimabai was unwell FAC |
PW.1 then immediately went to the house of the accused along with some of his relatives FAC |
There he saw that Bhimabai was lying dead and froth was coming out of her mouth which indicated that she had consumed some poisonous substance FAC |
The Police Patil of the village PW.3 Sandu Mohanrao Patil lodged an accidental death report at 9.00 p.m. on 15 September 1991 at the police station FAC |
On the basis of the said accidental death report, PW.6 Sandeepan Kamble, Police Sub-Inspector, visited the house of the accused, held inquest on the dead body of Bhimabai, and thereafter sent the same for post-mortem examination FAC |
PW.1 Tukaram lodged the FIR of the incident at 7.00 p.m. on 16 September 1991 at P.S. Chikalthana, on the basis of which Case Crime No. 144 of 1991 was registered against the appellants under Sections 498-A, 306 and 304-B IPC FAC |
After completion of investigation, charge sheet was submitted against the appellants and in due course, the case was committed to the Court of Sessions FAC |
The learned Sessions Judge framed charges under Sections 498-A, 304-B read with Section 34 IPC and Section 306 read with Section 34 IPC against both the appellants FAC |
The appellants pleaded not guilty and claimed to be tried FAC |
The prosecution in order to establish its case examined six wintesses and filed some documentary evidence FAC |
The learned Sessions Judge after consideration of the material on record acquitted the appellants of the charges under Sections 498-A and 306 read with Section 34 IPC but convicted them under Section 304-B IPC and imposed a sentence of 7 years RI thereunder RLC |
The appeal preferred by the appellants was dismissed by the High Court by the judgment and order dated 23 February 2005 RLC |
We have heard learned counsel for the appellants, learned counsel for the State of Maharashtra and have perused the records FAC |
The post-mortem examination on the body of deceased Bhimabai was conducted by a team of two doctors of Department of Forensic Medicine and Toxicology, Medical College, Aurangabad, namely, Dr. S.M. Jawale and Dr. H.V. Godbole on 16 September 1991 FAC |
The doctors did not find any sign of external or internal injury on the body of the deceased and in their opinion, the cause of death was insecticide poisoning FAC |
The viscera were preserved for chemical analysis FAC |
The report of the post-mortem examination was admitted by the defence FAC |
The specific case of the prosecution is that Bhimabai ended her life by consuming poison because of harassment caused to her by the appellants for or in connection with demand of dowry FAC |
It is, therefore, necessary to briefly examine the evidence of the prosecution witnesses FAC |
PW FAC |
1 Tukaram, father of the deceased, has given details of the prosecution version of the incident in his statement in Court FAC |
He has deposed that in the marriage he had given Rs. 20,000 as dowry FAC |
Initially, Bhimabai was treated well for about six months, but thereafter the appellants started ill-treating her FAC |
Whenever Bhimabai came to her parental home, she used to complain that for some domestic reasons she was being harassed FAC |
When she had visited her parental home on the last occasion, she had said that her husband Appasaheb had asked her to bring Rs FAC |
1,000-1,200 for domestic expenses and for purchasing manure as he had no sufficient money FAC |
Bhimabai had complained to him that she was not being given proper food, clothings and even footwear and occasionally the appellant no. 1 used to beat her FAC |
The last time she visited her parental home was during the festival of Nag Panchami and at that time she looked depressed FAC |
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