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In the latter case the locus standi would be ascertained liberally,since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed PRE |
It was in this sense that the House of Lords defined "person aggrieved" in the matter of Powell's Trade Mark: "...although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct,and to exclude a mere common informer,it is undoubtedly of public int... |
Whenever it can be shown,as here,that the applicant is in the same trade as the person who has registered the trade mark,and wherever the trade mark,if remaining on the register,would,or might,limit the legal rights of the applicant,so that by reason of the existence of the entry on the register he could not lawfully d... |
But if the ground for rectification is merely based on non-user i.e.under Section 46 of the Act,that is not really on account of any public mischief by way of an incorrect entry Ratio |
The non-user does not by itself render the entry incorrect but it gives a right to a person whose interest is affected to apply for its removal Ratio |
An applicant must therefore show that "in some possible way he may be damaged or injured if the trade mark is allowed to stand; and by 'possible' I mean possible in a practical sense,and not merely in a fantastic view Ratio |
All cases of this kind,where the original registration is not illegal or improper,ought to be considered as questions of common sense,to a certain extent,at any rate; and I think the applicants ought to show something approaching a sufficient or proper reason for applying to have the trade mark expunged Ratio |
It certainly is not sufficient reason that they are at loggerheads with the respondents or desire in some way to injure them Ratio |
Addisons' application was one under Section 46 and the test to determine whether the applicant was a "person aggrieved" within the meaning of that section should have been the one laid down by Romer,J.in Wright case and not the one propounded by the House of Lords in the matter of Powell's Trade Mark Ratio |
The High Court and the Joint Registrar fell into error in not drawing this distinction Ratio |
However,it is not necessary to dilate on this aspect of the matter as the appellant has really argued on the second and third aspects of Section 46 viz.the alleged non-use of the trade marks by Hardie and special circumstances Ratio |
In the case of Hardie Trading Ltd 2003 Indlaw SC 756.1,this Court approved the test applied by Romer,J.in The Royal Baking Powder Company v Ratio |
Wright,Crossley,and Co.(1898 Ratio |
15 RPC 677),which has been reproduced in the report Ratio |
We respectfully agree Ratio |
Hardie Trading Ltd 2003 Indlaw SC 756.1 has been followed by this Court in a recent decision in the case of Kabushiki Kaisha Toshiba (2008) 10 SCC 766) 2008 Indlaw SC 1395 Ratio |
This Court stated that Section 46 speaks for private interest while Section 56 speaks of a public interest Ratio |
It is true that the appellant in opposition to the applications for removal/rectification of trade mark did not specifically challenge in its counter affidavits the locus standi of the first respondent to be heard as a person aggrieved Ratio |
Obviously,in the absence of any specific objection by the appellant to that effect,no specific issue was framed by the High Court whether the applicant was an aggrieved person Ratio |
The applications having been transferred to the IPAB in terms of Section 100 of the 1999 Act,the IPAB examined the matter in light of the issues that were framed by the High Court although in the written submissions before it,the objection was raised that the first respondent has ceased to have locus standi in view of ... |
The question is,whether in these circumstances it was incumbent upon the IPAB to consider and satisfy itself about the locus standi of the first respondent to be heard as a person aggrieved Ratio |
In our considered view,it was Ratio |
In the first place,when the first respondent applied for rectification/removal in respect of three registrations in Classes 7,9 and 16,it must have shown in respect of each of them that it is a 'person aggrieved' and the IPAB must have separately considered in respect of each registration the locus standi of the first ... |
Secondly,and more importantly,during the pendency of the applications,certain events had taken place which had some bearing on the question of locus standi of the first respondent insofar as invocation of Section 46 (1) of The 1958 Act is concerned Ratio |
In the affidavit filed by the first respondent on July 14,2004 before the Court of Additional District Judge,Delhi an unequivocal and categorical statement has been made that now there is no dispute between the plaintiff (appellant herein) and defendant (first respondent herein) under the Trade Mark and that defendant ... |
In terms of Section 46(1),not only that the applicant has to show that he is an aggrieved person as his interest is being affected but the IPAB must also be satisfied,before it directs the removal of registered trade mark,that the applicant is an aggrieved person before it invokes the power in directing the removal of ... |
This is so because the pre-requisite for exercise of power under Section 46(1) is that the applicant is a person aggrieved Ratio |
The question then arises,whether it is sufficient for the applicant to show that he is a person aggrieved when he makes his application or he must continue to remain a person aggrieved until such time as the rectification/removal application is finally decided Ratio |
In our view,the grievance of the applicant when he invokes Section 46(1) must not only be taken to have existed on the date of making application but must continue to exist when such application is decided Ratio |
If during the pendency of such application,the applicant's cause of complaint does not survive or his grievance does not subsist due to his own action or the applicant has waived his right or he has lost his interest for any other reason,there may not be any justification for rectification as the registered trade mark ... |
In re Apollinaris Company's Trade-Marks,while dealing with this aspect,Kekemich,J.stated : ".....because that is a remedy given to the person aggrieved through the interposition of the Court for the benefit of the 14 (1891) 2 Ch.186 27 applicant,and if at the date of the trial he has no cause of complaint it seems to... |
We concur with the above statement Ratio |
In the circumstances,we are satisfied that the applications made by the first respondent for rectification/removal of the subject trade marks from the register need to be considered afresh by the IPAB in accordance with law and the observations made above Ratio |
Since the first respondent has also grievance in connection with the impugned order particularly with regard to non-consideration of its case under Section 56 of The 1958 Act,we refrain from going into the merits of the diverse contentions raised before us and leave the parties to agitate these contentions before the I... |
In view of the above,these appeals are allowed in part and the impugned order dated September 9,2004 is set aside RPC |
The applications being TRA Nos.25 to 27 of 2003 (OP Nos.764 to 766 of 2001) are restored to the file of Intellectual Property Appellate Board,Chennai for hearing and disposal afresh in accordance with law RPC |
The parties shall bear their own costs RPC |
Appeals allowed RPC |
An FIR was registered on 23.3.1996 on the statement of one Prakashi Devi FAC |
She stated that on the night of 22/23.3.1996,while FAC |
she and her daughter-in-law Sheela Devi were sleeping in her house,around 11.30 PM,the appellant jumped over the front wall of her house and broke the bulbs and ran away; that at that time,no male member was present in the house except the children FAC |
that around 00.30 AM the appellant again came into her house and touched her daughter-in-law Sheela Devi who woke up and raised an alarm; and that the appellant immediately ran away FAC |
The police investigated into the said complaint and submitted a report u/s.173 of the Code of Criminal Procedure (for short 'the Code FAC |
On that basis,the following charge was framed by the Judicial Magistrate,First Class,Karnal,against the appellant - "That on 23.3.1996,after having made preparation for causing hurt or assault,you committed house trespass into the house of Smt FAC |
Prakashi Devi,and thereby committed an offence punishable u/s.452 IPC within my cognizance FAC |
Secondly on the same date,time and place,you assaulted and used criminal force against abovenamed Prakashi Devi with intent to outrage her modesty and thereby committed an offence punishable u/s.354 IPC and within my cognizance FAC |
And I hereby direct that you be tried on the above said charge by this court FAC |
Emphasis supplied FAC |
When the said charged was read over and explained to the appellant,he pleaded not guilty to the said charge and claimed trial FAC |
Prakashi Devi was examined as PW-1.She reiterated what was recorded in the FIR,that the appellant came into the house around 11.30 PM and broke the bulbs,that he came again around 00.30 AM and touched her daughter-in-law (Sheela Devi) and when her daughter-in-law woke up and raised an alarm,the appellant ran away FAC |
In her cross-examination,Prakashi Devi stated that she has five sons; that only her husband and one son named Mahavir were staying with her; that the other four sons were married and were not staying with her; that on that night,her husband was away in the fields and her son Mahavir was also not present in the house FA... |
However,when confronted with her statement recorded in the FIR,she admitted having stated that when the appellant had come first time at around 11.30 PM and broke the outside bulbs,her son woke up and went out of the house FAC |
She also admitted that the appellant did not touch her nor teased her nor abused her FAC |
Her daughter-in-law Sheela Devi gave evidence as PW-2 and stated that she was married to one Jaibir who worked in the military services; that at 11 to 11.30 PM the accused scaled the door and broke the bulbs in the verandah of her house; that when she identified the accused and raised an alarm the accused ran away; tha... |
It was elicited in her cross-examination that the accused did not go towards her mother-in-law nor say anything to her mother-in-law; that she used to come to the village where her in-laws were residing,only when her husband came home; and that the house of her father-in-law was surrounded by the houses of his brothers... |
Both PW1 and PW2 stated that the house of the accused was at a distance of 15-16 houses from the house of Prakashi Devi; that the accused had never come into their house earlier; that their family and the accused were not on visiting terms with each other even during functions,marriages or death,though they were on vis... |
PW 2 also stated that she did not know the particulars of the dispute between the accused and her in-laws FAC |
The investigating officer was examined as PW-3.The accused examined a witness Ex-Sarpanch of the village as DW-1 and he stated that there was a quarrel between the accused and complainant's son Surinder about a water course and subsequently he came to know that the quarrel was converted into a false case against the ac... |
The learned Magistrate by judgment dated 2.2.2001,held the accused guilty of offences u/ss.452 and 354 Cr RLC |
PC and sentenced him for rigorous imprisonment for six months and a fine of Rs.1,000/-in default thereof simple imprisonment for one month RLC |
The appeal filed by the accused was dismissed by the Addl RLC |
Sessions Judge on 20.2.2002.The criminal revision filed by the appellant was disposed of by the High Court on 16.3.2010 upholding the conviction but reducing the sentence from six to four months rigorous imprisonment RLC |
That order is challenged by the accused FAC |
One of the contentions urged by the accused before the appellate court and High Court was that the charge against him was that he attempted to outrage the modesty of Prakashi Devi (PW-1) whereas the evidence was to show that he attempted to outrage the modesty of her daughter-in-law Sheela Devi FAC |
He contended that as the charge levelled against him was not proved,and as he was not required to defend himself against a charge that he assaulted and outraged the modesty of Sheela Devi,he ought to have been acquitted FAC |
This was negatived by the appellate court and High Court holding that an accused cannot take advantage of a technical defect in framing the charge FAC |
It was held that mentioning the name of Prakashi Devi instead of the name of Sheela Devi in the charge was an error that did not prejudice the accused FAC |
The following question therefore arises for our consideration: When the charge is that the accused assaulted 'X' and outraged her modesty,but the evidence is that he assaulted 'Y' to outrage her modesty,can the accused be punished,for having assaulting and outraging the modesty of 'Y',even though he was not charged wit... |
S.211 of the Code relates to the contents of the charge STA |
It inter alia provides that every charge under the Code shall state the offence with which the accused is charged STA |
S.212 of the Code provides that the charge shall contain the particulars as to the time and place of the alleged offence,and the person (if any) against whom,or the thing (if any) in respect of which,it was committed,as are reasonably sufficient to give the accused notice of the matter with which he is charged STA |
S.215 of the Code however clarifies that no error in stating either the offence or the particulars required to be stated in the charge,and no omission to state the offence or those particulars,shall be regarded at any stage of the case as material,unless the accused was in fact misled by such error or omission,and it h... |
S.464 of the Code relates to effect of omission to frame,or absence of,or error in,charge STA |
Sub-s.(1) thereof provides that no finding,sentence or order of a court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error,omission or irregularity in the charge including any misjoinder of charge,unless,in the opinion of the court of appeal,co... |
Sub-s.(2) of sec.464 provides that if the court of appeal,confirmation or revision is of opinion that failure of justice has in fact been occasioned,it may -- (a) in the case of an omission to frame a charge,order that a charge be framed and that the trial be recommended from the point immediately after the framing of ... |
In Willie (William) Slaney vs PRE |
State of Madhya Pradesh PRE |
AIR 1956 SC 116 1955 Indlaw SC 80] this court explained the concepts of "prejudice to the accused" and "failure of justice" thus:- "(6) Before we proceed to set out our answer and examine the provisions of the Code,we will pause to observe that the Code is a code of procedure and,like all procedural laws,is designed to... |
The object of the Code is to ensure that an accused person gets a full and fair trial along certain well-established and well-understood lines that accord with our notions of natural justice PRE |
If he does,if he is tried by a competent court,if he is told and clearly understands the nature of the offence for which he is being tried,if the case against him is fully and fairly explained to him and he is afforded a full and fair opportunity of defending himself,then,provided there is 'substantial' compliance with... |
That,broadly speaking,is the basic principle on which the Code is based PRE |
Now here,as in all procedural laws,certain things are regarded as vital PRE |
Disregard of a provision of that nature is fatal to the trial and at once invalidates the conviction PRE |
Others are not vital and whatever the irregularity they can be cured; and in that event the conviction must stand unless the Court is satisfied that there was prejudice PRE |
Some of these matters are dealt with by the Code and wherever that is the case full effect must be given to its provisions PRE |
This Court then examined the question as to when a procedure adopted could be said to have worked actual injustice to the accused and held : "Except where there is something so vital as to cut at the root of jurisdiction or so abhorrent to what one might term natural justice,the matter resolves itself to a question of ... |
Some violations of the Code will be so obvious that they will speak for themselves as,for example,a refusal to give the accused a hearing,a refusal to allow him to defend himself,a refusal to explain the nature of the charge to him and so forth RLC |
These go to the foundations of natural justice and would be struck down as illegal forthwith RLC |
It hardly matters whether this is because prejudice is then patent or because it is so abhorrent to well-established notions of natural justice that a trial of that kind is only a mockery of a trial and not of the kind envisaged by the laws of our land because either way they would be struck down at once RLC |
Other violations will not be so obvious and it may be possible to show that having regard to all that occurred no prejudice was occasioned or that there was no reasonable probability of prejudice RLC |
In still another class of case,the matter may be so near the border line that very slight evidence of a reasonable possibility of prejudice would swing the balance in favour of the accused RLC |
the Code is emphatic that 'whatever' the irregularity it is not to be regarded as fatal unless there is prejudice RLC |
It is the substance that we must seek RLC |
Courts have to administer justice and justice includes the punishment of guilt just as much as the protection of innocence RLC |
Neither can be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities RLC |
Broad vision is required,a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction RLC |
Every reasonable presumption must be made in favour of an accused person; he must be given the benefit of every reasonable doubt RLC |
The same broad principles of justice and fair play must be brought to bear when determining a matter of prejudice as in adjudging guilt RLC |
But when all is said and done what we are concerned to see is whether the accused had a fair trial,whether he knew what he was being tried for,whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself RLC |
If all these elements are there and no prejudice is shown the conviction must stand whatever the irregularities whether traceable to the charge or to a want of one RLC |
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