Supreme Court Upholds Distinctive Trade Marks '50' and 'Fifty'

The Supreme Court upheld the registration of the trade marks '50' and 'Fifty', affirming that they were distinctive at the commencement of the proceedings. The Court found no evidence of fraud in the registration process and determined that the respondent had a bona fide intention to use the marks. The appeals were dismissed, and the validity of the trade marks was confirmed, with the appellants ordered to bear the costs.

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Issues Involved:
1. Distinctiveness of the trade marks '50' and 'Fifty'
2. Alleged common usage of the trade marks
3. Bona fide intention and use of the trade marks
4. Fraudulent registration claims
5. Applicability of Section 32 of the Trade and Merchandise Marks Act

Detailed Analysis:

1. Distinctiveness of the Trade Marks '50' and 'Fifty':
The primary issue was whether the trade marks '50' and 'Fifty' were distinctive of the respondent company's goods at the time of registration and at the commencement of the proceedings. The learned Single Judge initially found that the numeral '50' was not distinctive due to its common usage by various manufacturers. However, the Division Bench concluded that the marks had become distinctive through extensive use by the respondent company, as evidenced by the increase in sales from Rs. 19,644 in 1949-50 to Rs. 14.83 lacs in 1961-62. The Supreme Court upheld this view, noting that the marks were distinctive at the commencement of the proceedings as required by Section 32(c).

2. Alleged Common Usage of the Trade Marks:
The appellants argued that the numerals '50' and 'Fifty' were commonly used in the trade and thus not distinctive. The Single Judge found that several dealers and manufacturers used the numeral '50' before and after the respondent's registration. However, the Division Bench and the Supreme Court noted that the foreign manufacturers like Lucas used these numerals merely as type marks, not as trade marks. The Supreme Court emphasized that a few unchallenged, scattered infringements did not render a registered trade mark common.

3. Bona Fide Intention and Use of the Trade Marks:
The appellants contended that the respondent did not register the marks with a bona fide intention of using them. The Single Judge found no evidence of fraud or lack of bona fide use. The Division Bench and the Supreme Court agreed, noting that the respondent had actively protected its trade marks through legal actions and opposition to other registrations, demonstrating a bona fide intention to use the marks.

4. Fraudulent Registration Claims:
The appellants alleged that the respondent fraudulently declared themselves as the originators of the marks '50' and 'Fifty'. Both the Single Judge and the Division Bench found no evidence to support these claims. The Supreme Court concurred, stating that there was no averment or proof of fraudulent registration by the respondent.

5. Applicability of Section 32 of the Trade and Merchandise Marks Act:
Section 32 provides that after seven years from the date of registration, a trade mark's validity is presumed unless it is proved that the registration was obtained by fraud, the mark was registered in contravention of Section 11, or the mark was not distinctive at the commencement of the proceedings. The Supreme Court emphasized that the burden of proof was on the appellants to demonstrate that the marks were not distinctive or were registered fraudulently. The Court found that the appellants failed to discharge this burden, noting that the marks had become distinctive through extensive use by the respondent.

Conclusion:
The Supreme Court dismissed the appeals, affirming the Division Bench's decision to uphold the registration of the trade marks '50' and 'Fifty'. The Court found that the marks were distinctive at the commencement of the proceedings, there was no evidence of fraud, and the respondent had a bona fide intention to use the marks. The appeals were dismissed with costs, and the registration of the trade marks was deemed valid.

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