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The special circumstance is that the appellant filed an application for registration u/s.48(1) and continued it till it was abandoned ARG |
It would also be considered as a special circumstance for non user ARG |
The discretion exercised by the Court must be judged in the light of the facts and circumstances,The appellant having used the trade mark,it does not lie in the mouth of the appellant to contend that he is not a permitted user or a bona fide user of the trade mark ARG |
In view of the diverse contentions,the question arises: whether the High Court was right in refusing to rectify and strike off the trade marks of the respondents from the register of trade marks Ratio |
S.46(1)(b) reads as under STA |
46.Removal from register and imposition of limitations on ground of non-use.-(1 STA |
Subject to the provisions of section 47,a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either - (a) xxx xxx xxx xxx (b) that u... |
Sub-s.(3) envisages that "an application shall not be entitled to rely for the purpose of clause (b) of sub-s.(1) or for purpose of sub-s.(2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation ... |
It would,thus,be apparent that subject to section 46,for a registered trade mark up to date within one month before the date of making application for rectification for a continuous period of 5 years or longer if registered trade mark had not been use during that period,there was no bona fide user in relation to those ... |
The trade mark should be taken off and struck out form the register of trade marks in respect of any goods in respect of which the trade mark is registered .Sub-s.(3) enables the registered proprietor to show special circumstances for the non use of the trade mark due to which circumstances in the trade,he could not us... |
Sub-s.(2) of S.48 give defence to "permitted user" in relation to a registered trade mark STA |
It means the use of the trade mark by a registered user of the trade mark in relation to good with which he is connected in the course of trade and in respect of which the trade mark remains registered for the time being and for which he is registered as a registered user and which complies with any conditions or restr... |
S.48 (1) envisages that subject to the provisions of Section 49,a person other than the registered proprietor of a trade mark may be registered as a "registered user" thereof in respect of any or all of the goods in respect of which the trade mark is registered otherwise than as defensive trade mark STA |
The permitted use of trade mark shall be deemed to be used by the proprietor thereof and shall be deemed no to be used by a person other than the proprietor for the purpose of S.46 or for any other purpose for which such use is material under the Act or any other law STA |
The Central Government is empowered to prevent trafficking in trade mark STA |
It would,therefore,be clear that a permitted use of the trade mark should be done under sub-s.(1) of Section 48.It Ratio |
Should be either by the registered proprietor of the trade mark or a person other than the registered proprietor registered u/s.48(1) to use the trade mark by operation of sub-section (2).An un-registered person u/s.48(1) or a person who did not register u/s.(1) of S.48 shall not be deemed to be a registered user for t... |
The High Court recorded a finding and it is not disputed across the bar,that the appellant had entered into an agreement with Sen Raleigh which was a permitted user and used the trade mark till November 1,1976 and thereafter by registered user agreement dated December 20,1976 used trade mark for a period of 5 years Rat... |
It is not in dispute that till date of filing of the application,the appellant used the trade mark in passing off the bicycles under the trade mark of the respondent Ratio |
The question,therefore,is: whether the appellant must be deemed to be bona fide user of the trade mark,though there was no agreement nor was it registered as permitted user u/s.48(1 Ratio |
on admitted position and in the facts and circumstances,we are of the view that the appellant was a ago user of the trade mark of the respondent in passing off the bicycles under the trade mark of the respondent who,admittedly,is a registered proprietor Ratio |
It is true,as held by this Court,that to get a trade mark registered without any intention to use it in relation to any goods but merely to make money out of it by selling it to others,the right to use it as a commodity would be trafficking in that trade mark Ratio |
It requires to be prevented and prohibited Ratio |
The Court would not lend assistance to such registered proprietors of the trade mark Ratio |
There must be real trade connection between the proprietor of the trade and licensee of the goods and the intention to use the trade mark must exist at the date of the application for registration of trade mark and such intention must be genuine and bona fide and continue to subsist in order to disprove the charge of t... |
It is a question of fact in every case Ratio |
The question is: whether the trade connection exists to dispel the charge of trafficking in the trade mark Ratio |
This question was considered by this Court in American Home Products Corporation vs PRE |
Mac Laboratories Pvt.Ltd and Anr.1985 Indlaw SC 464 and they need no reiteration PRE |
It is seen that preceding the nationalization of the Cycle manufacturing industry under the IDR Act,the respondent had a collaboration agreement with Sen Raliegh who was a registered user under Section 48.From him,the appellant came to succeed by statutory operation Ratio |
It was,therefore,not a case of getting the trade mark registered under the Predecessor Act and continuing under the Act for trafficking of the trade mark Ratio |
It is true that u/s.43(1) either the registered proprietor or a permitted person is required to register as permitted user Ratio |
The benefit of S.46 would be available during the period for which the agreement registered and user continued in furtherance thereof Ratio |
It appears that even an unregistered licensee,so long as there is unbroken Connection in the course of the trade between the licensor and the passing off lincesee's goods under the trade mark,there would be sufficient connection in the course of the trade between the proprietor and bona fide user of the trade mark by u... |
It must,therefore,be held that though the deemed presumption under sub-s.(2) of S.48 is referable to the permitted user or the registered user and it does not extend to unregistered permitted user,the Connecting link of passing off the goods between the licensor's trade mark and the lincesee should bona fide be with th... |
It would connect the registered proprietor and the user of the trade mark by the unregistered lincesee Ratio |
The appellant must be presumed by course of conduct that he is a bona fide user for the purpose of S.46(1)(b Ratio |
In K.R Beri and Co.vs PRE |
The Metal Godds Mfg PRE |
Co Pvt Limited and Anr PRE |
AIR 1980 Delhi 299 1980 Indlaw DEL 180],the Division Bench construed S.48(2) and held that an unregistered user of the trade mark even With the consent of the proprietor cannot be construed to be a registered user u/s.48(1) and such construction renders sub-s.(2) of S.48 surplus age or otios,which is impermissible by s... |
We have given anxious consideration to the reasoning therein PRE |
On strict interpretation,the view of the Division Bench may be correct but it is not correct to hold that by a bona fide user of an unregistered user when connection between the proprietor of the trade mark and the permitted user in relation to passing off the goods under the trade mark are proved,it does not render su... |
It is true that the burden flies on the registered proprietor of the trade mark to establish the exceptions provided under S.46(3).Equally,the applicant for rectification also prima facie shows non-user for the relevant period PRE |
Then the burden shifts to the proprietor of the trade mark to affirmatively prove the special Circumstances for non-user of trade mark PRE |
It must be shown that the non-use of the trade mark is due to special circumstances of the trade and not due to some other Cause which would have operated,whether the special Circumstances had arisen off not PRE |
Although the special circumstances of trade taken by themselves would have prevented the use of the trade mark PRE |
If the non-user was,in fact,due to some other circumstances and would have occured whether the circumstances had followed or not,subs.(3) would not apply PRE |
It must,therefore,be duty of the registered proprietor to show What non-user was strictly due to the special circumstances of trade and not of any intention on the part of the registered proprietor not to use the trade mark during the relevant period PRE |
Though there was a ban on impart of the Raleigh cycles manufactured outside India and passed off under the registered mark of the respondents as a registered proprietor,the circumstances do not attracted sub-section (3) of S.46 to relieve the respondents to establish non-user,but on the facts of this case,we have the a... |
It is also not necessary to go into the question whether the application filed by the appellant u/s.48(1) and its pendency would be a special circumstance in favour of the respondent Ratio |
Suffice it to hold that subs.(3) of S.46 Ratio |
is not attracted to the facts in this case Ratio |
The question then is: whether the discretion has been properly exercised by both the Division Bench as well the single Judge in refusing to take off the trade mark from the register by striking off trade mark from the register of the Registrar of Trade Marks Ratio |
It is true that while exercising discretion,the Court u/s.46 of the Act should take into consideration not only commercial interest of the parties but also public interest: In para 21.82 at page 386 of the law of Trade Marks and passing-off by P.Narayanan (4th Ed.),it is stated that the Court or the Registrar has discr... |
Ordinarily,however,the mark will be expunged (taken off) when the factual circumstances necessary for the removal are established unless it is shown that the case comes within the exceptions provided in the sub-section (3).The High Court refused to exercise the discretion to strike off the trade mark from the register ... |
It is seen that the appellant had not abandoned,at any point of time,the use of the trade mark of the respondent-registered proprietor till filing of the application Ratio |
Though the appellant has not used the trade mark by itself since 1954 and after the expiry of the permitted use by Sen Raleigh until the notice was issued by the respondent directing the appellant not to use the trade mark,the appellant came to use the same in passing off bicycles manufactured by it under trade mark of... |
It is not relevant for the purpose of S.46(1)(b) whether the bicycles were manufactured with the assistance of technical know-how passed on by Sen Raleigh or the permitted user Ratio |
Suffice it to state that the appellant,as a fact,had used the trade mark of the respondent in passing off the bicycles manufactured by it Ratio |
The High Court,in our view,declined,for good reasons,to rectify the trade mark under Section Act b) of the Act Ratio |
We are also not persuaded to take a different view from that of the High Court Ratio |
In these circumstances,we are of the view that the High Court has properly exercised its discretion and refused to rectify and strike off the trade mark,from the register of trade marks of the Registrar Ratio |
The appeal is accordingly dismissed but,in the circumstances,without costs RPC |
The appellant is a trust which wanted to establish a self-financing Engineering College and submitted an application during 1994-95 to the University of Kerala as well as to All India Council for Technical Education (hereinafter called the 'AICTE FAC |
There was an inspection by a team of Professors of the University and it recommended favourably when it stated that the facilities provided by the appellant would be sufficient for establish-ing an Engineering College FAC |
The AICTE sent a communication on 30.4.1995 stating that on the basis of the observations made by the Expert Committee and the recommendations made by the Central Regional Committee,State Level Committee and Central Task Force as per the provisions of the AICTE regulation dated 30.1.1994,the AICTE was granting conditio... |
The abovesaid approval was subject to the fulfilment of specific conditions mentioned in Annexure I and the general conditions mentioned in Annexure II to the said letter FAC |
In the event of contravention of the conditions,guidelines,norms and regula-tions of the AICTE,the AICTE could withdraw the approval at any time FAC |
Under the impression that the State Govt.was to grant permission,the appellant requested the State Government by letter dated 24.6.1995 for permission to start the college FAC |
Meanwhile,the Mahatama Gandhi University by their letter dated 31.5.1995 forwarded to the Government a list of Colleges and Courses for affiliation during the academic year 1995-96.The appellant's college was shown as one of the colleges among the affiliated colleges for the said period FAC |
The appellant sent a reminder to the Government on 26.8.1995 for permission for starting the college for the academic year 1995-96 and ultimately the Government refused permission by informing the appellant by a letter dated 16.8.1996 as follows : FAC |
In inviting your attention to the reference cited,I am to inform you that Government regret their inability to comply with your request FAC |
Thereafter,the appellant filed writ petition O.P.No.4612 of 1996 for quashing the said order and for a direction to sanction and establish an Engineering College FAC |
The learned Single Judge of the High Court by his judgment dated 14.1.1997 allowed the writ petition,quashed the above-said order of the government dated 16.8.1996 and directed the Mahatama Gandhi University to consider the appellant's application for permanent affiliation without reference to the above letter of the G... |
The direction to pass a fresh order of affiliation was issued in view of the fact that the University contended before the learned Single Judge that unless the Government granted approval,permanent affiliation could not be granted FAC |
The Government was also directed to reconsider its decision FAC |
Against the said judgment of the learned Single Judge the Commis-sioner and Secretary of the Government (Higher Education Department) filed Writ Appeal No.1024 of 1997.The Division Bench of the High Court allowed the appeal and set aside the order of the Government and dismissed the writ petition FAC |
The Division Bench,however,observed that the appellant was at liberty to make a fresh application to the Government of Kerala for according sanction for setting up the Engineering College or to request the Government to consider the earlier application,for a future academic year FAC |
It is against the abovesaid judgment of the Division Bench that this appeal has been preferred FAC |
Learned senior counsel for the appellant ARG |
Sri T.L.Vishwanatha ARG |
Iyer contended that the Division Bench erred in reversing the well considered judgment of the learned Single Judge and according to him after the coming into force of the AICTE Act,1987,the statutes conferring power on the State or University to the extent they were inconsistent with the Central Act were void ARG |
In so far as institutions imparting technical education were concerned,the University or the State Government had no independent role to play except to the extent provided in the above said enactment,in the present case,the AICTE had made inspections and was satisfied that the necessary infrastructure was available and... |
The AICTE had consulted the State of Kerala as well as the Mahatama Gandhi University ARG |
The University had granted conditional approval,as stated earlier ARG |
Therefore the AICTE consti-tuted a Task Force and obtained its opinion and thereafter granted its approval on 13.11.1995 subject to various conditions ARG |
According to the learned senior counsel it was indeed not necessary for the appellant to have applied to the State Government for any further sanction to establish the college ARG |
It might be that under the relevant statutes of the University,the University was required to obtain the "views" of the State Government but that did not amount to requiring any approval of the State Government and indeed if any such statute required the approval of the state Government,it would be void in view of what... |
Another v PRE |
Adhiyaman Educational & Research Institute PRE |
Others,[l995] 4 SCC 104.1995 Indlaw SC 1631 PRE |
Sri T.L.Viswanatha Iyer also contended that though the State Government stated in its counter affidavit filed in the High Court that the "policy" of the Government was not to grant approval to self-financing engineering colleges to be established,such a policy could not come in the way of the appellant in view of what ... |
State of Tamil Nadu & Others,[1996] 3 SCC 15 1996 Indlaw SC 858 ARG |
On the other hand learned Additional Solicitor General Sri Mukul Rohtagi contended on behalf of the State of Kerala that the "Policy" of the State of Kerala at the relevant time was not to grant approval for establish-ment of more engineering colleges in the State ARG |
The Government had clarified in the counter affidavit filed in the High Court that the Government "was not in a position" to take a decision to start new engineering colleges,without properly assessing the necessity of more engineering graduates from the State and without exploring the possibility of employment opportu... |
Also there were four Engineering Colleges at Kannur,Trichur,Kottayam and Thiruvananthapuram Districts and three Private (Aided) Engineering Colleges at Palakkad,Ernakulam (Kothamangalam) and Kollam Districts ARG |
The Model Engineering College,Emakulam was a selffinancing Engineering College and others were the colleges at Changannur and Pathansamthitta and there was a self-financing engineering college at Kasargode ARG |
There were also two unaided Engineering Colleges at Mallappuram and Thiruvananthapuram ARG |
Even though the appellant trust was not seeking aid from the Government and even assuming that it was financially self-sufficient,it would not be in the interests of the students & employment,to permit new engineering colleges to be established ARG |
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