text stringlengths 5 5.67k |
|---|
Nor do we see anything in article 278 (1) which in any way affects the legislative competence of Parliament or of State Legislatures to pass any law within their respective powers. Ratio |
All that it provides is that the earlier provisions in the Chapter relating to levy, collection and distribution of any tax or duty may be varied for a certain period on an agreement between the Government of India and the Government of a Part B State. Ratio |
This was clearly necessary in view of the fact that many sources of revenue of States which came to form part B States had to be taken over by the Government of India in view of the division of powers of taxation in List I and List 11 of the Seventh Schedule to the Constitu tion and that might have created a gap in the... |
Therefore the Government of India was given the power for a period of ten years at the outside to come to an agreement with any Part B State in the matter of levy or collection of any tax or duty leviable by it and its distribution. Ratio |
918 Article 278(l)(a) would also affect article 266 which provides that all revenues received by the Government of India shall form one consolidated fund except the proceeds of certain taxes and duties which were assigned in whole or in part to the States by the other provisions of this Chapter. Ratio |
What article 278 (1) does is that it permits the Government of India to enter into agreements not only with respect to levy and collection of duties and taxes specifically dealt with in this Chapter but also with respect to other taxes and duties leviable by the Government of India which would ordinarily go to the Cons... |
But for this provision it may not have been open to the Government of India to give help to Part B States which required it beyond what is provided in the earlier provisions of this Chapter. Ratio |
All that article 278 (1) does is to provide for further help to Part B States in case it was necessary by entering into agreements with them as to the manner of levy and collection of any tax and duty leviable by the Government of India and for the distribution of its proceeds in spite of the provision in Art 266 requi... |
When article 278 (1) (a) speaks of levy and collection it does not deal with legislative competence but only with the actual levy of tax and its collection , and this in our opinion is clear from the later provision which relates to the distribution of the proceeds resulting from such levy and collection. Ratio |
It is true that sometimes the word "levy" also includes imposition of tax and not merely its assessment and collection; but in the context in which the words "levy and collection" have been used in article 278(l), it seems to us that they only cover the assessment and collection not the imposition of a tax. Ratio |
We may in this connection refer to the words of article 277 which speaks of any taxes, duties, cesses or fees which were being lawfully levied by the Government of any State or by any municipality or other local authority or body. Ratio |
Those words came up for consideration by this Court in The Town Municipal Committee vs Ramchandra Vasudeo Chimote (1) and it was held that in the context the words "being lawfully levied" in article 277 meant that the tax was actually levied and not merely that a law imposing a tax had been made. PRE |
Similarly in the context of article 278 (1) (a) the levy and collection of any tax, followed as it is by the distribution of its proceeds, mean the actual assessment and collection of the tax and the way in which that should be done and have no reference to legislative competence as to the imposition of the tax. Ratio |
We are of opinion that article 278 (1) (a) deals only with public revenues and how they should be assessed and collected (1) ; 919 and distributed between the Union of India and Part B States in case there is an agreement in that behalf between the Union of India and Part B States. Ratio |
It further provides that in case of such agreement the earlier provisions of the Chapter relating to the levy, collection and distribution of taxes and duties would not apply and the agreement would prevail for a maximum period of ten years. Ratio |
As to the non obstante clause with which article 278 (1) (a) opens, that was apparently necessary in view of certain provisions of the Constitution as to the extent of the executive power of the Union and the States. Ratio |
Thus it becomes possible to the Government of India if it so decides to enter into an agreement with a Part B State with respect to a tax leviable by the Government of India that the tax shall be assessed and collected by the State through its own officers and the State may retain the entire proceeds so assessed and co... |
Article 278 (1) (a) however permits that such assessment and collection may also by agreement be left to the States in spite of the provisions in other part of the Constitution. Ratio |
The nonobstante clause however with which article 278 (1) opens does not in our opinion affect the legislative competence of Parliament even with respect to duties and taxes which are dealt with by an agreement under article 278(l)(a). Ratio |
We are therefore of opinion that in the first place the agreement of February 25, 1950 on which the company relies with respect to concessions to corporations must be deemed to have been entered under article 295 (1) (b), and not under article 278 (1) (a). Ratio |
In the second place, article 278 (1) (a) merely contemplates an agreement between the Centre and Part B States with respect to levy collection or distribution of public revenues which are leviable by the Government of India and has nothing to do with any contract between a former Indian State and another person with re... |
The company therefore cannot rely on the agreement of February 25, 1950 in this connection and contend that the agreement of April 7, 1947 was binding for at least ten years thereunder. Ratio |
We are therefore of opinion that the view taken by the High Court is incorrect. Ratio |
The appeals are therefore allowed and the order of the High Court in the writ petition and the decree of the High Court in the suit are set aside, and the writ petition and the suit are dismissed. Ratio |
In the circumstances we order parties to bear their own costs throughout. RPC |
Appeal allowed. RPC |
Appeals No. 522 and 523 of 1962. FAC |
Appeals by special leave from the judgment and order dated November 30, 1960 of the Kerala High Court in A. section No. 233 of 1959 and O.P. No. 19 of 1952. FAC |
C.B. Agarwala, N. K. Anand and J. B. Dadachanji, for the appellant (in both the appeals). FAC |
G.S. Pathak and Sardar Bahadur, for the respondent (in both the appeals). FAC |
739 The Judgment of the Court was delivered by Ayyangar J. FAC |
These two appeals, by special leave, are con cerned with the validity of the respondent firm 's claim as the registered proprietor of a Trade Mark `Navaratna Pharmaceutical Laboratories ' used by it on its medicinal preparations. FAC |
The two appeals arise out of different proceedings but before narrating their history it would be convenient to briefly set out the facts upon which the claim of the respondent to the exclusive use of this Trade Mark is based. FAC |
The respondent, as stated already, is a firm and it carries on business at Ernakulam in the same name and style as the Trade Mark now in controversy "Navaratna Pharmaceutical Laboratories". FAC |
As its name indicates, the firm manufactures medicinal products. FAC |
The business of the firm was founded sometime in 1926 by one Dr. Sarvothama Rao who is now no more. FAC |
When started, the business was called 'Navaratna Pharmacy ' but from January, 1945 the name of the business was changed to the present one Navaratna Pharmaceutical Laboratories. FAC |
From the very beginning the proprietors used the Trade, Mark "Navaratna" on the products which they manufactured and sold. FAC |
In December, 1928 the word 'Navaratna ' and the name 'Navaratna Pharmacy ' as connoting the products of the respondent firm were registered by a declaration of ownership before the Registrar of Assurances, Calcutta. FAC |
When a legislation substantially similar to the Indian was enacted in the State of Cochin [Vide the Cochin 19 of 1199 (1944)] the respondent firm registered the word 'Navarama ' as a Trade Mark in respect of its medicinal preparations, on January 31, 1947 and another mark consisting of the words 'Navaratna Pharmaceutic... |
There is evidence that the respondent firm has been having an expanding business in the products which it manufactures and has been selling the same under the above and other cognate names, and this has continued ever since. FAC |
The Trade Marks (Amendment) Act, 1946 (Act 12 of 1946) inserted section 82 A in the of 1940 and under this provision the Central Government was empowered to enter into reciprocal arrangements with Indian States for mutual recognition of TradeMarks registered in the other territory. Ratio |
There was a similar provision in section 78 A of the Cochin Act and availing itself of this provision the respondent firm applied for the registration of the words 'Navaratna Pharmaceutical Laboratories ' in the Trade spp./65 4 740 Marks Registry at Bombay. FAC |
The application was advertised and no opposition having been entered, the Trade Mark was registered. FAC |
Pausing here, certain facts have to be set out in relation to the :appellant, since they are material for understanding the Origin Of the proceedings which have given rise to these appeals. FAC |
The appellant has, for some Years Past, been carrying on business in the preparation of Ayurvedic Pharmaceutical Products at Jullundur City in East punjab under the name of the 'Navaratna Kalpa Pharmacy " and had been vending the medicines Prepared by him under the name 'Navaratna Kalpa" while so, in October, 1946, The... |
This application was advertised in April, 1950, and the, respondent firm opposed the application for registration on the ground that the word Navaratna" was descriptive and, having no distinctiveness, could not be registered. FAC |
This objection prevailed and the registration was refused. FAC |
This led to the proceedings which have culminated in these appeals. FAC |
In the first instance, the appellant moved the Registrar Of Trade Marks for removing from the register the trade mark "Navaratna" and the word "Navarama" in the Other mark of the respondent. FAC |
By this date, however, the respondent had filed wit No. 233 of 1951 (from which C.A. No. 522 of 1962 arises) before the District Judge, Anjikaimal, for a permanent injunction restraining the appellant from advertising, selling or offering for sale any preparations under a trade mark combining the word 'Navaratne or any... |
By reason of the pendency of this proceeding in which the validity of the registration of the respondent 's mark was directly involved the Registrar refused his application, and directed the appellant to move the High Court within whose jurisdiction the District Court was situated for the rectification of the register ... |
The appellant accordingly Mod O.P. No. 19 of 1952 in the High Court of Travancore Cochin praying that the registration of the word " 'Navaratna:" by itself or as part of other marks as a trade mark for goods belonging to the respondent be removed from the register. FAC |
Civil Appeal 523 of 1962 arises out of the order of the High Court on this petition. FAC |
This original petition No. 19 of 1952 was kept pending in the High Court after it was ready for hearing and was heard along with the appeal against the decree of the District Judge in Original Suit No. 233 of 1951. FAC |
741 The original suit was, as stated earlier, for a perpetual injunction against the appellant for using the word "Navaratna" and the cause of action for that suit was stated to be that the plaintiff (respondent before us) being proprietor of the two registered trade marks "Navaratna" and "Navaratna Pharmaceutical Labo... |
There was also an allegation that by use of these marks the defendant was passing off his goods as those of the plaintiff. FAC |
By his written statement the defendant raised principally three points: 1.(a)That the word "Navaratna" in its etymo logical sense meant Ayurvedic preparations of a particular composition and that the word had been generally adopted by several firms and organisations for designating their preparations which they vended ... |
It was therefore submitted that the plaintiff could claim no exclusive title to the use of that word which was a common word for the description of the product as a trade mark to designate its pharmaceutical preparations. FAC |
1.(b) As regards the trade mark "Navaratna Pharmaceutical Laboratories" which was in fact the name in which the plain tiff carried on its business, the defence was that the crucial integer in that mark was the expression "Navaratna" and that if the plaintiff was not entitled to the exclusive use of the word "Navaratna"... |
For them two reasons the defence was that no claim could be made to relief under section 21 of the(2)Next it was submitted that even on the basis that the plaintiff was entitled to the use of the word "Navaratna ' either alone or in the combination "Navaratna Pharmaceutical Laboratories", still the use, of the trade ma... |
(3)As regards the claim for relief on the basis of passing off, the defendant laid stress upon the packing, get up and the manner in which the trade origin of the goods was clearly brought out in the packages in which his preparations were marketed and it was submitted that they clearly negatived any possibility of pas... |
Appropriate issues were raised based on the pleadings and the contentions just now indicated and the learned District Judge found: (1) that having regard to the method of packing adopted and theother features of the get up etc., on which the defence had relied,the defendant was not guilty of passing off; (2) that the w... |
To reach this finding the learned District Judge pointed out that it was brought to his notice that there were several concerns manufacturing and vending Ayurvedic preparations which had for a very long time past either used marks which included that word and had described their products by calling them "Navaratna" eit... |
The right of the plaintiff to relief on the ground of the infringement of the mark 'Navaratna ' was therefore disallowed. RLC |
Dealing next with the question as to whether the mark "Navaratna Pharmaceutical Laboratories" could be validly registered and rights claimed for such a registration, the learned Judge answered it in the affirmative pointing out that no evidence was placed before the Court of the use by any other person, firm or concern... |
The learned District Judge further held the mark "Navaratna Pharmaceutical Laboratories" or its permissible variants had been used long before February 25, 1937 and having acquired factual distinctiveness, was registerable under the proviso to section 6(3) of the Act. RLC |
The plaintiff was, therefore, granted a decree for an injunction confined to the trade mark "Navaratna Pharmaceutical Laboratories". RLC |
743 From this judgment the appellant filed an appeal to the High Court and the learned Judges heard the appeal along with the Original Petition under section 46 of the Act filed by the appellant. FAC |
By a common judgment the learned Judges confirmed all the findings and the decree of the learned District Judge and made an order in the, Original Petition conformably to this decision. RLC |
These two appeals have been preferred by the appellant after obtaining special leave from this Court in these two matters respectively. FAC |
The first submission of Mr. Agarwala, learned Counsel for the appellant was that the judgment of the High Court holding the respondent 's claim to the trade mark "Navaratna Pharmaceutical Laboratories" as a validly registered mark was really inconsistent with their finding that "Navaratna" which was the crucial and imp... |
His further submission was that if he was right in this, the addition of the words "Pharmaceutical" and "Laboratories" which were common English words of ordinary use to designate the place where pharmaceutical products are manufactured, were, on the terms of section 6 of the and even otherwise, incapable of acquiring ... |
He, therefore submitted that the plaintiff had no exclusive right to the use of the mark as a registered trade mark and that consequently his claim for the relief of perpetual injunction Under section 21 of the was not sustainable. ARG |
For this purpose learned Counsel relied on the provisions of section 6 of the which provided the positive qualifications for registrability of trade mark on the relevant date That section runs: "6.(1) A trade mark shall not be registered unless it contains or consists of at least one of the following essential particul... |
(2)For the purposes of this section, the expression distinctive ' means adapted, in relation to the goods in respect of which a trade mark is proposed to be registered, to distinguish goods with which the proprietor of the trade mark is or may be connected in the course of trade from goods in the case of which no such ... |
(3)in determining whether a trade mark is adapted to distinguish as aforesaid, the tribunal may have regard to the extent to which (a) the trade mark is inherently so adapted to distinguish, and (b) by reason of the use of the trade mark or of any other circumstances, the trade mark is in fact so adapted to distinguish... |
" The learned Counsel particularly stressed clause (d) of sub section (1) which excluded words "having direct reference to the character or quality of the goods" from being treated as distinctive, and thus qualifying for registrability. 'Me word 'Navaratna ' having been held to be not distinctive and indeed incapable o... |
If the matter had to be decided in terms of section 6(1) alone without reference to the terms of the proviso to sub section(3) to which we shall advert presently we see great force in the submission of the learned Counsel. Ratio |
As Pry L. J. said in : Dunn(1) with reference to the cor responding law in U.K. which has been reproduced by section 6 of the Indian Act: "It is said that the words 'Fruit Salt ' have never been used in collocation except by Mr. Eno. Ratio |
Be it so . . Ratio |
I cannot help regarding the attempt on Mr. Eno 's part as an instance of that perpetual struggle which it seems to me is going on to enclose and to appropriate as private property certain little strips of the great open common of the English language. 'Mat is a kind of trespass against which I think the courts ought to... |
" There can be no dispute either that the words 'pharmaceutical Laboratories" used in relation to medicinal preparations have "a direct reference to the character of the goods". Ratio |
Speaking of the mark "Torq set" in respect of screws bolts, rivets and studs and fastening devices, Lloyd Jacob observed :(2) "Direct reference corresponds in effect to aptness for normal description". Ratio |
Judged by this test it could not be seriously contended that the prohibition in section 6 (1) (d) would be attracted to this mark. Ratio |
In the present case, the words 'Pharmaceutical ' and 'Laboratories ' would have a direct reference to the character of the goods since the trade marks to which it is claimed to attach them are medicinal or pharmaceutical products. Ratio |
In this connection reference may also be made to a decision of the House of Lords to which Mr. Agarwala drew our attention. Ratio |
Yorkshire Copper Works Limited 's Application for a Trade Mark.(8) Yorkshire Copper Works Ltd. vs Registrar of Trade Marks(4) was an appeal from (1) at 386.(2) In the matter of American Screw Co. 's appln.at 346. (3) (4) (1952) 69 R.P.C. 207; 746 the Court of appeal affirming the decision of the Divisional Court which ... |
The refusal to register was on the ground of the word being geographical and so being disqualified for registration under a provision of the U.K. of 1938 identical in terms with section 6 (1 ) (d) of the Act. PRE |
The applicants led evidence to establish and claimed that they had established that everyone concerned in the trade in copper tubes understood "Yorkshire Tubes" as meaning the products of the applicant. PRE |
It was therefore contended that the word 'Yorkshire ' had lost its primary geographical significance and had become 100% distinctive of the applicant 's goods. PRE |
In dismissing the appeal Lord Simonds, Lord Chancellor observed "I am content to accept the statement reiterated by their learned Counsel that the mark had acquired 100 per cent distinctiveness. PRE |
In spite of this fact the Registrar refused registration and has been upheld in his refusal by Lloyd Jacob, J. and the unanimous opinion of the Court of Appeal. . PRE |
Here I must express my emphatic dissent from the proposition which was strenuously urged by Counsel for the Appel lants that distinctiveness in fact is conclusive at any rate, if there is what he called 100 per cent distinctiveness. PRE |
In my opinion the decisions of this House in the W. & G. case and the Glastonbury case are fatal to this proposition and I am content to accept as accurate the clear exposition of those cases given by the learned Master of the Rolls in the present case. PRE |
He took the view which I share that the Court of Appeal had in the Liverpool Cable case rightly interpreted the opinion of Lord Parker in the W. & G. case and that this House, in its turn, in the Glastonbury case endorsed that interpretation. PRE |
Accepting that view of the law, which indeed, if the matter were res integral I should not hesitate to commend to your Lordships, I do not see how the Registrar could have come to any other conclusion. PRE |
Unless, having found distinctiveness in fact, he needed to pay no regard to the other factor of inherent adaptability, he was faced by the fact that there could not well be a geographical name less "inherently adapted" than Yorkshire to distinguish the 747 goods of the Appellants. PRE |
I do not propose to try to define this expression. PRE |
But I would say that, paradoxically perhaps, the more apt a word is to describe the goods of a manufacturer, the less apt it is to dis tinguish them: for a word that is apt to describe the goods of A, is likely to be apt to describe the similar goods of B. PRE |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.