Trade mark assignment and pending registration did not bar the assignee from suing for infringement or seeking leave.

An assignee of a registered trade mark may maintain an infringement suit and seek leave under Clause 14 even before its title is entered on the register under Section 45, because Sections 27 and 53 do not bar a bona fide assignee and Section 28 was read as addressing final relief rather than disabling interim proceedings. Section 45 was treated as recognising acquisition of title by assignment without creating an absolute procedural bar while registration is pending. The objection that the Section 45 application was invalid for want of a joint owner's signature failed because it rested on an unpleaded factual premise and the assignment deed, read as a whole, did not establish defective title or non-joinder.

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Issues: (i) Whether an assignee of a registered trade mark can maintain a suit for infringement and seek leave under Clause 14 of the Letters Patent before its title is entered on the register under Section 45 of the Trade Marks Act, 1999. (ii) Whether the application for registration as subsequent proprietor was invalid for want of signature by an alleged joint owner, so as to render the suit not maintainable for non-joinder or defective assignment.

Issue (i): Whether an assignee of a registered trade mark can maintain a suit for infringement and seek leave under Clause 14 of the Letters Patent before its title is entered on the register under Section 45 of the Trade Marks Act, 1999.

Analysis: Section 27 bars infringement proceedings only in respect of an unregistered trade mark and does not govern a registered mark assigned to another person. Section 28 confers the right to obtain relief on the registered proprietor, but that expression was read as relating to final relief and not as excluding interlocutory relief or disabling a bona fide assignee pending completion of the Section 45 process. Section 45 recognises acquisition of title by assignment or transmission and confers discretion on the court to admit the instrument in evidence even if registration is pending. The provision was held not to create an absolute bar against a court recognising the assignment or entertaining the suit where the assignment is valid and the assignee has applied or is about to apply under Section 45. Section 53, which expressly bars only a person described in Section 2(1)(r)(ii), did not cover an assignee. Section 29 was held irrelevant to the question of who may sue, and Section 134 concerns forum and jurisdiction only.

Conclusion: The suit by the assignee was maintainable despite the pendency of registration under Section 45, and leave could not be refused on that ground.

Issue (ii): Whether the application for registration as subsequent proprietor was invalid for want of signature by an alleged joint owner, so as to render the suit not maintainable for non-joinder or defective assignment.

Analysis: The alleged defect depended on a factual premise drawn from selected recitals in the assignment deed. Reading the deed as a whole, the Court found that the assigned marks were not all subject to the alleged joint ownership objection and that the plaintiff's version was not shown to be defective on the pleadings or on the document itself. Since the contention raised a pure question of fact not properly pleaded, it could not be entertained to defeat the petition.

Conclusion: The objection to the Section 45 application and the plea of non-joinder were rejected.

Final Conclusion: The Court upheld the plaintiff's right to proceed with the infringement action as a bona fide assignee pending registration, and the petition succeeded.

Ratio Decidendi: An assignee of a registered trade mark, having acquired title by a valid assignment and having moved or being in the process of moving under Section 45, is not barred from maintaining an infringement suit or obtaining interim relief merely because the register has not yet been updated in its favour.

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