text stringlengths 5 5.67k |
|---|
Suraj Bhan,Belanganj Agra FAC |
THAT Pursuant to a request on form TM-23 dated 17th June,1986 and order thereon dated 24th October,1986 FAC |
Ganga Ram Anil Kumar (HUF),Sunil Kumar and Sumitra Rani,trading as Thukral Mechanical Works Railway Road,Sirhind (Punjab) are registered as subsequent proprietors of this mark as from 30th May,1986 by virtue of Agreement dated 30th May,1986.AND FAC |
THAT FAC |
The registration of the aforesaid trade mark has been renewed from time to time and will remain in force for a period of a seven years from 13th FAC |
May,1986 and may be renewed at the expiration of that period and of each succeeding period of a seven years FAC |
In the said C.O.No.9 of 1986 filed by the first respondent against M/s FAC |
Jain Industries,despite service of notice,nobody appeared on behalf of the defendant.16.1.1987 was the date fixed in the said suit FAC |
Appellant's counsel appeared on that date and,inter alia,contended that presently it was the registered owner of the trade mark which was sought to be cancelled ARG |
In view of that statement,a submission was made on behalf of the first respondent that it may be permitted to withdraw the petition with liberty to file a fresh petition on the same cause of action ARG |
The learned Judge directed recording of statements of the learned counsel in this behalf; pursuant whereto the same were recorded which reads as under : "C.O.9 of 1986 FAC |
Mr FAC |
Singh has filed a reply in this petition bringing out that presently he is the registered owner of the trademark which is sought to be cancelled in this petition FAC |
In view of this situation learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action after impleading M/s Thakural mechanical Works etc FAC |
Let the statement of learned counsel for the petitioner be recorded FAC |
Statement of Shri K.L.Aggarwal,counsel for petitioner without oath FAC |
In view of the submissions of M/s Thakural Mechanical Works I may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action FAC |
Statement of Shri Hemant Singh,counsel for M/s FAC |
Thakural Mechanical Works without oath FAC |
I have no objection if the petitioner is permitted to withdraw this petition with permission to file a fresh petition on this very cause of action FAC |
On the basis of the said statement,the following order was passed : "This petition has been filed by M/s FAC |
PM Diesels Pvt.Ltd FAC |
Against M/s FAC |
Jain Industries and the Dy FAC |
Registrar of Trade Marks under Section 46,56 and 107 of the Trade and Merchandise Marks Act,1958 for rectification of entry relating to the Registered Trade Mark No.228867 in Class 7.After FAC |
the notice was served upon the respondent 1,a reply has been filed by M/s Thakural Mechanical Works bringing out there in that they are now the registered proprietors of said FAC |
Trade Mark No.228867.In FAC |
this view of the matter learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action FAC |
The request is not opposed on behalf of M/s Thakural Mechanical Works FAC |
In these circumstances the request of the plaintiff is granted and petitioner is permitted to withdraw this petition and file a fresh petition on this very cause of action FAC |
The petition is accordingly filed as withdrawn leaving the parties to bear their own costs FAC |
A fresh application was filed by the first respondent FAC |
The said M/s FAC |
Jain Industries,however,was not impleaded as a party therein FAC |
The cause of action therefor was stated to have arisen in the following circumstances : "That the cause of action for the present petition arose in favour of the petitioner and against the respondents in the month of January 1987 when the respondent informed this Hon'ble Court that they have been recorded as subsequent... |
The cause of action is continuous from day to day till the impugned registration is cancelled/rectified FAC |
The injunction matter in Suit No.2408 of 1985 came up for hearing before a learned Single Judge of the High Court FAC |
By an order dated 19.1.1988,having regard to the provisions contained in the said Act,the learned Judge opined that appellant having become the registered proprietor of the said trade mark,no case for grant of injunction has been made out,the interim order of injunction passed on 19.12.1985 was vacated and the defendan... |
b) Defendants shall mention the name of the defendant firm,Thukral Mechanical Works,Sirhind on each and every centrifugal pump manufactured by them and sold in the name of 'Field Marshal FAC |
c FAC |
The defendants shall maintain proper accounts of the sale of centrifugal pumps under the trade mark "Field Marshal" and shall file them in Court as and when directed FAC |
Correctness or otherwise of the said order has not been questioned Ratio |
The second rectification application filed by the first respondent,however,was transferred to the Intellectual Property Appellate Board FAC |
The said application was dismissed FAC |
A writ petition was filed there against by the first respondent FAC |
A learned Single Judge of the Delhi High Court,however,refused to stay the operation of the order of the Board dated 27.10.2004.An appeal was preferred there against FAC |
The Division Bench of the High Court thereafter while disposing of both the writ petition and the Letters Patent Appeal allowed the writ petition and set aside the order of the Board and directed it to adjudicate the dispute on merits FAC |
The said order of the Division Bench is under challenge in this appeal FAC |
The core question which arises for our consideration is as to whether in the aforementioned facts and circumstances of the case,the application under S.46(1)(b) was maintainable Ratio |
Before adverting thereto,we may take notice of the relevant statutory provisions : Ss.46(1)(b),48(1),48(2) and 56 read as under: "Section 46--Removal from register and imposition of limitations on ground of non-use--(1) Subject to the provisions of section 47,a registered trade mark may be taken off the register in res... |
b) that up to a date one month before the date of the application,a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that,except where the... |
Section 48--Registered users--(1) Subject to the provisions of section 49,a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trademark is registered otherwise than as a defensive trade mark; but the... |
The permitted use of a trade mark shall be deemed to be used by the proprietor thereof,and shall be deemed not to be used by a person other than the proprietor,for the purposes of s.46 or for any other purpose for which such use is material under this Act or any other law STA |
Section 56--Power to cancel or vary registration and to rectify the register--(1 STA |
On application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved,the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention,or failure to observe a condition entered on the register in relatio... |
Any person aggrieved by the absence or omission from the register of any entry,or by any entry made in the register without sufficient cause,or by any entry wrongly remaining on the register,or by any error of defect in any entry in the ' register,may apply in the prescribed manner to a High Court or to the Registrar,a... |
The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register STA |
The tribunal,of its own motion,may,after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard,make any order referred to in sub-s.(1) or sub-s.(2 STA |
Any order of the High Court rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly STA |
The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register STA |
Indisputably,the scope of the provisions for removal from Register in terms of S.46 and 56 of the Act stand on different footings Ratio |
Whereas S.46 had a limited application,S.56 of the Act is wider in nature Ratio |
Concededly,cl.(a) of sub-s.(1) of S.46 is not attracted in the case Ratio |
For the purpose of appreciation of the rival contentions,we may notice the findings of the Board as also the High Court FAC |
The Board has taken the view that the period of five years and one month will begin to run from the date on which Thukral became the proprietor of the trademark,that is,30th May,1986 and,therefore,the rectification application could have been filed by the appellant only sometime in 1991.Opining that an application for ... |
The High Court on the other hand opined: "It was not anybody's case before us that M/s Jain Industries FAC |
the registered proprietor of the trademark used it at all FAC |
The trademark was used by the Appellant and Thukral,neither of whom were proprietors thereof,except that Thukral claims to have become its proprietor with effect from 30th May,1986.According to learned counsel for the Appellant,the use of the trademark by Thukral was not legally permissible use inasmuch as Thukral did ... |
Jain Industries to use the trademark FAC |
If Thukral did,then it cannot be said that there was no bona fide use thereof by its proprietor FAC |
that is,M/s Jain Industries FAC |
This appears to be the position at least till 30th May,1986.In FAC |
the meantime,as a result of the ex parte ad interim injunction granted on 19th December 1985 by this Court in Suit No.2408 of 1985,there was no question of Thukral using the trademark Field Marshal till the injunction was vacated on 19th January,1988 FAC |
The Act was enacted to provide for the registration and better protection of trademarks and for the prevention of the use of fraudulent marks of merchandise Ratio |
Registration of a trade mark remains valid for seven years Ratio |
Renewal applications are required to be filed on the expiry of seven years Ratio |
M/s Ratio |
Jain Industries got itself registered and obtained periodical renewal thereof as is required under the Act Ratio |
First Respondent withdrew the application against M/s Ratio |
Jain Industries Ratio |
The prayer in the application was to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned Ratio |
It is in the aforementioned situation,we are called upon to determine the meaning of the words 'for the time being' occurring in S.46(1)(b) of the Act Ratio |
Two interpretations thereto which are possible are: (1) the said words would denote non-use of the trade mark in relation to the goods by the appellant for a period of five years or longer; and (2) The mark had not been used for a period of five years or longer either by the present proprietor thereof or his predecesso... |
We may,however,also notice that another construction of the said provision has been put forth by Mr Ratio |
Sunderam,learned senior counsel appearing on behalf of the appellant,that the word 'proprietor' would not mean a registered proprietor but also a person who has become 'proprietor' by long use thereof Ratio |
The words 'for the time being' would mean differently in different situations Ratio |
It may mean 'the moment or existing position' as was held by this Court in the case of Jivendra Nath Kaul v PRE |
Collector/District Magistrate and Anr.[(1992 PRE |
3 SCC 576 1992 Indlaw SC 1107] or in the context of cl.(22) of Art.366 of the Constitution as has been held in H.H.Maharajadhiraja PRE |
Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior,H.H.Maharajadhiraja PRE |
Maharana Shri Bhagwat Singhji Bahadur of Udaipur v PRE |
Union of India and Anr.,AIR 1971 PRE |
SC 530 1970 Indlaw SC 300 para 88 to mean: "By the use of the expression "for the time being" in Cl.(22) of Art.366 PRE |
the President is not invested with authority to accord a temporary recognition to a Ruler nor with authority to recognize or not to recognize a Ruler arbitrarily : the expression "for them time being" predicts that there shall be a Ruler of the Indian State,that if the first recognized Ruler dies,or ceases to be a Rule... |
The terms also may bring within its umbrage the entire period of five years or more irrespective of the fact as to whether the registered proprietor was one or more than one as has been held by the High Court Ratio |
There cannot be any doubt or dispute that the registration of a trade mark confers a very valuable right Ratio |
The person in whose name the trade mark has been registered may take action against any person for passing off the goods as that of the registered owner Ratio |
It confers an exclusive right of use of the trade mark in relation to the goods in which the trade mark is registered Ratio |
The same is an assignable right in terms of S.36 of the Act,whereas an unregistered trade mark is not Ratio |
Non Ratio |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.