TaxTMI 
TaxTMI 
2006 (10) TMI 480
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....nd civil revision petitions, their description as petitioners or respondents would defy uniformity and would only create confusion. Therefore, they are referred to herein, as the Delhi Party , Tindivanam Party and Kangayam Party , for the sake of convenience, since they have their head offices at Delhi, Tindivanam (Villupuram District, Tamilnadu) and Kangayam (Erode District, Tamilnadu) respectively. 3. Since the parties hereto have wielded against one another, almost all the weapons available under the Trade Marks Act, 1999, such as (i) opposition for registration, (ii) Assignment (iii) appeals and review petitions before the Appellate Board, (iv) rectification petition, (v) petition for prosecution (vi) civil suit and (vii) proceedings under Article 226/227 of the Constitution, it is necessary to give a brief prelude, before plunging into complete factual details, though it would be at the cost of repetition. 4. The Delhi party had a registration in respect of the word mark, MAHARAJA SPECIAL from 23-5-1977 without any picture or caricature, in Class 30, in respect of grains and rice, claiming user since 1966. The Tindivanam and Kangayam p....
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....d 23-1-2004) the Kangayam party filed an Appeal in O.A.No.26 of 2004. 7. By a detailed order dated 6-8-2004, the Intellectual Property Appellate Board dismissed O.A.No.26 of 2004 filed by the Kangayam party against the grant of registration to Tindivanam party. Even while doing so, the Board directed the Registrar to amend the application for registration filed by the Tindivanam party by restricting the same to the first named brother namely B.Mohammed Yousuf, among the 3 original applicants. It is pertinent to point out here that by the time the said order was passed (on 6-8-2004) the Registrar had already issued a certificate of registration dated 26-2-2004 in favour of the original 3 applicants constituting the Tindivanam Party. Therefore the question of amending the application for registration did not arise on that date and any amendment could have been done only for the certificate of registration. But nevertheless, the Appellate Board did not take note of the issue of the certificate of registration in favour of the 3 original applicants constituting the Tindivanam party and issued the aforesaid direction for amendment of the application of the Tindivanam Party to enable ....
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....11. While the above proceedings were in progress, the Tindivanam party filed 2 petitions namely (1) for Rectification of the Register in O.R.A.No. 1 of 2005 on the file of the Intellectual Property Appellate Board for the removal of the Delhi Party s trade mark and (2) for prosecution of the Delhi party under section 107 of the Act before the Registrar. 12. The rectification application filed by the Tindivanam party was partly allowed by the Board, by its order dated 15-3-2006 directing the Registrar to rectify the Register, restricting the area of operation of the Delhi party only to Delhi. Aggrieved by such a partial rectification ordered against them by the Board, the Delhi party has filed a civil revision petition in C.R.P.No.800 of 2006. The Tindivanam party also challenged the order passed in their rectification application, by way of a writ petition in W.P.25372 of 2006, contending that the Delhi party was not entitled to have the use of the trade mark even within Delhi. 13. The prosecution application filed by the Tindivanam party against the Delhi party was allowed by the Registrar as against which, the Delhi party filed an appeal to the Board in O.A.No.13 of 2005. T....
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.... counsel for the parties advanced detailed arguments on this issue and hence it has become necessary to resolve the same for future application. 17. PRELIMINARY ISSUE:- A plain reading of Articles 226 and 227 of the Constitution shows (a) that the jurisdiction of the High Court under Article 226 is original, while the jurisdiction under Article 227 is supervisory and revisional; (b) that the power of the High Court under Article 226 is to issue directions, orders or writs for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose, while the power of the High Court under Article 227 is a power of superintendence, both administrative as well as judicial, over courts and Tribunals; (c) that the power conferred under Article 226 is not restricted by the location of the seat of the Government or the authority or person against whom it is exercised, if the cause of action for its exercise arose in whole or in part within its territorial limits, while the power conferred under Article 227 is restricted to the courts and Tribunals located within the territories in relation to which the High Court exercises jurisdiction; an....
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....r to issue these writs is different from the supervisory or superintending power under Article 227. The powers conferred by Articles 226 and 227 are separate and distinct and operate in different fields. The fact that the same result can at times be achieved by two different processes does not mean that these two processes are the same. 101. Under Article 226 an order, direction or writ is to issue to a person, authority or the State. In a proceeding under that article the person, authority or State against whom the direction, order or writ is sought is a necessary party. Under Article 227, however, what comes up before the High Court is the order or judgment of a subordinate court or tribunal for the purpose of ascertaining whether in giving such judgment or order that subordinate court or tribunal has acted within its authority and according to law. 107. Petitions are at times filed both under Articles 226 and 227 of the Constitution . In our opinion, where the facts justify a party in filing an application either under Article 226 or 227 of the Constitution, and the party chooses to file his application under both these articles, in fairness and jus....
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....jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being exercised suo motu as well. 21. In L.Chandrakumar s case (1997) 3 SCC 261, the Constitution Bench of the Supreme Court held in para 91 that all decisions of Tribunals, whether created pursuant to Article 323-A or Article 323-B of the Constitution will be subject to the High Court s writ jurisdiction under Articles 226/227 of the Constitution before a Division Bench of the High court within whose territorial jurisdiction the particular Tribunal falls. In para 99 of the same judgment, the Constitution Bench declared clause 2 (d) of Article 323-A and clause 3 (d) of Article 323-B unconstitutional to the extent they excluded the jurisdiction of the High Courts under Article 226/227 and that of the Supreme Court under Article 32 of the Constitution. Section 28 of the Administrative Tribunals Act and the exclusion of jurisdic....
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....he Tribunals created under Article 323-A or 323-B of the Constitution. As against the orders passed by some of those Tribunals, writ petitions under Article 226 of the Constitution have always been entertained. 24. Coming to the orders of the Intellectual Property Appellate Board, it is seen that the same is not a tribunal constituted under Article 323-A or 323-B of the Constitution. It is created by an Act of Parliament, namely the Trade Marks Act, 1999. Some of the powers exercised by the Registrar and the powers exercised by the High court in its original side, have now been conferred upon the said Board, by the new Trade Marks Act, 1999. 25. Under the Trade and Merchandise Marks Act, 1958, (old Act) the power of rectification, cancellation and variation of registration was vested concurrently with the Registrar and the High Court under Section 56 of the Act. All other ancillary powers were conferred exclusively upon the Registrar. Where a suit for infringement of a registered trade mark was pending before a Court and the validity of the registration of the plaintiff s mark or the defendant s mark itself was questioned in the said suit, the application for rectification wa....
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....the above legal position under the new Act, the power of this Court in scrutinizing the orders of the Appellate Board is the power to issue a Writ of Certiorari and/or Mandamus as well as a power of judicial superintendence. Therefore, in our considered view, a petition for the issue of a Writ of Certiorari or Mandamus would lie against an order of the Appellate Board since the Appellate Board exercises both original as well as appellate jurisdiction. But while doing so, the writ petitions could be heard only by a Division Bench of this Court in view of the fact that what is vested with the Appellate Board is akin to the power vested upon a single Judge of the High Court under Sections 108(2) and 109(4) of Act 43 of 1958 (old Act) and hence the writ petitions arising out of the orders of the Appellate Board could be treated as akin to the proceedings before a Division Bench under Sections 108(3) and 109(5) of the old Act. 29. Therefore we hold on the preliminary issue that a Writ of Certiorari and/or Mandamus would lie against any order or decision of the Intellectual Property Appellate Board under Article 226 of the Constitution, to the Division Bench of the High Court. Consequ....
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.... the Registrar in respect of every mark, of the appropriate office of the Trade Mark Registry, in relation to the said mark. Rule 7 provides for transfer of pending applications and proceedings to appropriate offices of the Trade Mark Registry. Therefore, on a conjoint reading of the above provisions of the Act and the Rules, the learned counsel for the Delhi party contended that in as much as the Principal place of business of the Delhi party was at Delhi and the appropriate office of the Registry in relation to their mark, as entered in the Register, is Delhi, the application for rectification filed by the Tindivanam party before the Appellate Board at Chennai, ought to have been dismissed for want of territorial jurisdiction. 32. But we are unable to countenance the said contention of the learned counsel for the following reasons:- (a) Section 83 contemplates establishment only one Board for the entire country, though there could be several Benches of the same Board at different places under Section 84. (b) Section 84(2) empowers the Central Government to issue notifications prescribing the places at which a Bench shall sit and Section 84(4) enables the Central Governme....
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....i) The Delhi Party has obtained the word mark MAHARAJA SPECIAL registered as their Trademark bearing No.325536 on 23.5.1977 in Part-A of the Register in Class 30, in respect of grains and rice, claiming user since 1966 for the whole of India. They do not want their registration to be affected in any manner and they are aggrieved by the Appellate Board restricting their user to the territory of Delhi only. ii) The Kangayam Party has the lost the battle for the use of the mark both in their claim as the proprietor of the mark and in their claim as the Assignee from Delhi Party. Therefore if their claim to the use of the mark is accepted in any one of the capacities, they would be entitled to use the mark. iii) The Tindivanam Party not only wants registration of their mark but also wants the other 2 parties to be dislodged of their claim to the mark. Therefore if we test the rights of the parties to the trade mark in question, the answer to the core of the dispute could be found out and all the proceedings would automatically fall in tune with the said answer. 34. RIGHTS OF THE KANGAYAM PARTY:- (A) On 15.9.1992, an application was made by the Kan....
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....ers passed in Original Appeal Nos.24 to 26 of 2004. (F) Thus the Kangayam Party who started staking a claim in their own right, reconciled themselves to a claim as an assignee under the Delhi Party. (G) But to the misfortune of the Kangayam Party, the Delhi Party s assignment of the trade mark to the Kangayam Party was also held as illegal by the Appellate Board in an application for rectification filed by the Tindivanam Party in O.R.A.No.1 of 2005. Thus the Appellate Board foreclosed both the options for the Kangayam Party by holding that they have not established concurrent user of the mark and that the assignment in their favour was also illegal. (H) Therefore it is to be decided if the Kangayam Party has a right for the registration of the Trade Mark in their own right or at least entitled to claim a right to use the mark as an assignee of the Delhi Party. (I) In so far as the claim of Kangayam Party for registration of the trade mark in their own right is concerned, the Assistant Registrar of Trade Marks held by his order dated 30.1.2004 that the mark is not registerable in view of the objections of the Tindivanam Party under Sections 11 and 12(2) of the Act. Howev....
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....ellate Board went one step ahead and granted a relief to the Tindivanam Party by directing the Registrar to permit amendment of their application for registration by confining the registration to B.Mohammed Yousuf alone. Let us test the validity of the said order while dealing with the rights of the Tindivanam Party in the next chapter of this order. In so far as the claim of the Kangayam Party for registration is concerned, on their own admission in Ground No.ZB in their additional grounds for review, their application was liable to be rejected and hence we dismiss C.R.P.Nos.808 and 809 of 2006. (M) In addition to assailing the claim of the Kangayam Party on other grounds, Mr.P.S.Raman, learned Additional Advocate General appearing for the Tindivanam Party also contended that the Kangayam Party was guilty of committing a fraud upon the Appellate Board, by producing certain bills of its customers. Originally, the Kangayam Party has taken a stand before the Registrar that the old records were destroyed for want of place and copies of the invoices from the year 1990 alone were available. Subsequently, the Kangayam Party filed additional evidence in the form of certain bills of the....
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....ip firm B.Basheer Ahamed and Brothers adapted the brand name Maharaja in the year 1983 to market the rice produced in its rice Mill, Mujeeb Modern Rice Mill. In para-4 of the affidavit, the deponent Mr.B.Mohammed Yousuf claimed that the firm B.Basheer Ahamed and Brothers was dissolved on 30.3.1988 and that he got an absolute right along with his two brothers B.Mohammed Sheriff and B.Hyder Ali over the property viz., Mujeeb Modern Rice Mill and other machineries installed therein . In para-5 of the affidavit, he also contended that by an agreement dated 30.3.1988, he got the consent of all the other five partners and got the full right and absolute ownership of the brand. (C) Thus, through the affidavit filed as and by way of evidence before the Registrar of Trade Marks in support of their application for registration, Mr.B.Mohammed Yousuf claimed to be the Proprietor of the Trade Mark. But the application for registration was made by him on 4.8.1992 in the names of himself and his two brothers. As a matter of fact, based upon the said application dated 4.8.1992, the Tindivanam Party was also issued with a certificate of registration dated 26.2.2004, after the A....
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....thers of Mr.B.Mohammed Yousuf to the effect that they do not claim any right in respect of the disputed trade mark and that they have no objection to register the name of the first respondent alone. If the Appellate Board had merely stopped with the said finding, the Tindivanam Party would have been made to file appropriate application for amendment or variation before the Registrar. But by its order dated 6.8.2004, passed in O.A.No.26 of 2004, in the appeal filed by Kangayam Party, the Appellate Board not merely dismissed the Kangayam Party s appeal but went to the extent of granting a relief to the Tindivanam Party. In para-20 of its order, the Appellate Board, issued a direction to the Registrar to amend the application for registration filed by Tindivanam Party by deleting the names of the brothers of B.Mohammed Yousuf and confining the application for registration to B.Mohammed Yousuf alone. (F) Therefore the order passed by the Appellate Board in O.A.No.26 of 2004 and confirmed in R.P.No.4 of 2004, to the extent that it issued a direction in favour of the Tindivanam Party, on an appeal filed by the Kangayam Party, is clearly erroneous for the following reasons:- 1) On a....
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.... for the purpose of correcting a clerical error or an obvious mistake . In contra distinction, section 58 empowers the Registrar to correct any error or enter any change in the name and address or the description of the registered proprietor, on an application made by him. Overlooking these provisions, the Appellate Board in its order dated 6-8-2004 passed in O.A.No.26 of 2004 directed the Registrar to amend the application of the Tindivanam Party, after the issue of the certificate of registration itself. Therefore, that portion of the order of the Appellate Board in O.A.No.26 of 2004 dated 6.8.2004 granting a relief to the Tindivanam Party is not in accordance with law. Though this aspect was canvassed by the Kangayam Party in it review petition R.P.No.4 of 2004, the Appellate Board confined itself only to the question of assignment while dealing with the review. Therefore the offending portion of the order of the Appellate Board in its order dated 6-8-2004 passed in O.A.No.26 of 2004 as confirmed by the order dated 15-3-2006 in R.P.No.4 of 2004 is liable to be set aside. Accordingly C.R.P.No. 810 of 2006 arising out of R.P.No.4 of 2004 of the Appellate Board shall stand al....
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....cation for amendment or variation filed by Tindivanam Party under section 58. 6.8.2004 on the appeal filed by Kangayam Party, Appellate Board passes an order directing the Registrar to amend the application for registration suo moto, and confine the registration to B.Mohammed Yousuf alone, even while dismissing the appeal of Kangayam Party. 2.9.2004 -- Tindivanam Party files Form TM-33 for amendment in pursuance of the order of the Appellate Board 3.9.2004 The certificate of registration is amended by the Registrar of Trade Marks by merely erasing the names of the other two partners in the original certificate of registration dated 26.2.2004. 16.9.2004 application for renewal in Form TM-12 filed by Tindivanam Party. (J) Mr.P.S.Raman, learned Additional Advocate General contended that though the original certificate of registration was issued on 26.2.2004, it was the subject matter of appeal before the Appellate Board, which ultimately dismissed the appeal on 6.8.2004 and also directed the amendment of the application for registration. Such amendment was carried out on 3.9.2004 by the Registrar of Trade Marks and on 16.9.2004 (within 1....
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.....2.2004 merged in the order of the Appellate Board dated 6.8.2004 and the amendment carried out on 3.9.2004 and that therefore the period of limitation should be taken to run only from the said date and not from the original date of registration viz., 26.2.2004. In order to drive home this point, the learned Additional Advocate General relied upon the judgment of the Supreme Court in Union of India and Others vs. West Coast Paper Mills Ltd and Another {(2004) 3 CTC 53}, wherein it was held the doctrine of merger applied to courts and tribunals. (M) But we are of the considered view that the doctrine of merger does not apply to the case on hand. As we have observed above, the Tindivanam Party was granted a relief by the Appellate Board, in an appeal filed by Kangayam Party and that too which fell beyond the scope of the appeal. The order of the Appellate Board dated 6.8.2004 did not direct the Registrar to amend the certificate of registration. It directed the Registrar to amend the application for registration of the Tindivanam Party, when the application was no more pending. Therefore, the direction issued by the Appellate Board could not have been complied with by the Registra....
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....ndivanam Party on 16.9.2004 was beyond the period of limitation prescribed under the Act and hence W.P.No.28352 of 2004 filed by the Delhi Party for preventing the Registrar from renewing the registration of the Tindivanam Party deserves to be allowed. Consequently, the Writ appeal W.A.No.863 of 2006 arising out of the interim injunction granted in WPMP No.34413 of 2004 in W.P.No.25382 of 2004 is liable to be dismissed. In the result, we allow W.P.No.28352 of 2004 and dismiss W.A.No.863 of 2006. 36. RIGHTS OF THE DELHI PARTY:- (A) The registration of the word mark MAHARAJA SPECIAL in favour of the Delhi Party is dated 23.5.1977 and the registration has been granted on the basis of their claim that they have a long usage of the trade mark since 1966. The Tindivanam Party and Kangayam Party jumped into the fray in the year 1992 claiming user since 1983 and 1980 respectively. The following table would give comparative statement of the claims of the parties involved in this dispute:- Party Date of Registration User claimed since Delhi 23-05-1977 1966 Tindivanam 26-02-2004 1983 Kangayam 1980 &nbs....
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....d that two out of those three partners already died and the Delhi Party failed to effect any change in the partnership resulting in the Delhi Party loosing the proprietorship of the trade mark, and (ii) that at any rate the Delhi Party did not use the trade mark for the statutory period as contemplated under Section 47(1)(a) and (b) of the Act. (E) In answer to the aforesaid two grounds raised by the Tindivanam Party, for cancellation of the registration of the Delhi Party, the Delhi Party contended that one of the partners of the firm died in the year 1987 after which his wife and two sons were taken as partners. Subsequently, the wife and one of the sons died and thereafter the sons of the remaining partner were also inducted. Thus, according to the Delhi Party, the legal heirs of the deceased partners were inducted on the death of the original partners and that therefore the first ground on which the Tindivanam Party sought rectification, has to fail. (F) In so far as the issue of non-user of the trade mark for the statutory period as contemplated under Section 47(1)(a) and (b) of the Act is concerned, the Delhi Party has contended before the Appellate Board that they have....
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....the plaintiff s mark is questioned by the defendant in such proceedings and (ii) cases where a suit for infringement of a registered trade mark is pending and the defendant claims protection of registration of his own mark under the Act, but the plaintiff questions the validity of such registration of the defendant s mark. Thus, Section 125 conferring exclusive jurisdiction upon the Appellate Board is an exception to Section 57 conferring concurrent jurisdiction on both the Registrar and the Appellate Board. (K) Section 124 deals with the procedure to be adopted by the Court trying a suit for infringement, where the validity of registration of the mark of the plaintiff or the defendant comes into question. Section 124 reads as follows:- 124. Stay of proceedings where the validity of registration of the trade mark is questioned, etc. (1) Where in any suit for infringement of a trade mark. --- (a) the defendant pleads that registration of the plaintiff s trade mark is invalid; or (b) the defendant raises a defence under clause (e) of sub-section (2) of section 30 and the plaintiff pleads the invalidity of registration of the defendant s trade mark, the c....
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....d Another vs. Orchid Chemicals and Pharmaceuticals Ltd ((2006 (32) PTC 733 (Del.)). While the decision of the Division Bench of the Gujarat High Court arose under Section 111 of the old Act (Act 43 of 1958), the case before the Delhi High Court arose under Section 124 of the new Act (Act 47 of 1999) and both these provisions are actually inpari materia except that the words High Court appearing under Section 111 of the old Act have been substituted by the words Appellate Board under Section 124 of the new Act. The judgment of the Delhi High Court actually followed the judgment of the Division Bench of the Gujarat High Court. The Gujarat High Court held in para-10 of its judgment that if proceedings for rectification are not already pending, and a plea regarding invalidity of registration of the concerned mark is raised, the Court trying the suit has to be prima facie satisfied about the tenability of the issue and if it is so satisfied, it shall frame an issue to that effect and adjourn the case for three months, in order to enable the party concerned to apply for rectification. Particularly, the Division Bench of the Gujarat High Court held as follows:- In case, no such p....
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....idity of plaintiff s trade mark, it is a substantial compliance with the provisions of S. 111(1)(B)(ii)". (N) In our considered view, Section 124 (1)(b)(ii) of the Act is only an enabling provision. Sub clause (i) and sub clause (ii) of Clause (b) of sub section (1) of Section 124 operates at two different levels for two different situations. While sub clause (i) deals with a situation where any proceeding for rectification is already pending, sub clause (ii) deals with a situation where any proceeding for rectification is not pending. Both the sub clauses focus their field of operation only in relation to the stay of the civil suit. The conditions laid down in sub clause (ii) are intended to enable a party to obtain stay of the suit and not intended to provide for a discretion for the Court to permit or not to permit any application for rectification. Such a position is made clear by sub sections (2) to (5) of Section 124, which deals with the consequences of filing and not filing an application for rectification and of the ultimate outcome of such application for rectification. In other words, the requirements of raising an issue , adjourning the case and a&n....
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....Party) and the effect of the same on the assignment in favour of Kangayam Party. The second ground is with respect to the non-user by the Delhi Party. (P) In so far as the first ground is concerned, the Appellate Board did not go into the question of devolution of the rights of partners upon their legal representatives after their demise. In para-7 of its order dated 15.3.2006 in ORA No.1 of 2005, the Appellate Board merely observed that there is nothing on record to show that the reconstitution of the partnership firm (Delhi Party) was entered in the Register of Trade Marks or with the Registrar of Firms and held as follows:- We do not want to go into this issue in detail for the simple reason that this trade mark is being challenged only to get over the assignment in favour of respondents 12 and 13 who got such an assignment after the disposal of the appeals by this Appellate Board finding that the applicant is entitled for registration of the mark Maharaja brand with the device. We confine with regard to the assignment alone. (Q) However, we find from the pleadings of the parties that the original registration of the trade mark granted on 23.5.1977 in favour of De....
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....erefore the provisions of any other law governing assignment, are overridden by Section 38 of the Act. Section 42 of the Act imposes a condition upon the Assignee to apply to the Registrar for suitable directions, within six months (extendable by three more months) of the assignment, when an assignment is made otherwise than in connection with the goodwill of the business of the Assignor. Section 45 also requires an Assignee to apply to the Registrar for registration of his title in pursuance of such assignment. In this case, admittedly the Assignee has also filed Form TM-23 with the Registrar and the proviso to Section 45 (1) empowers the Registrar to refuse to register the assignment or transmission if the validity of an assignment or transmission is in dispute between the parties. As stated above, there is no dispute between the Assignor and the Assignee in this case. As a matter of fact, the Assignor has come up with the plea of assignment in his response to the application for rectification filed by the Tindivanam Party. Therefore, the fact that there was a mis-description of the name of the Assignor in the deed of assignment, will not give rise to a cause of action for the Ti....
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.... the Appellate Board. In ground No.(c) after paragraph 12 of their application for rectification filed before the Appellate Board in ORA No.1 of 2005, the Tindivanam Party merely made a passing reference to Section 47 of the Act by pleading that the Delhi Party was not doing business with the trade mark and using the same for illegal purpose and that the trade mark was not used for bona fide purpose and liable to be removed under Section 47. Again in ground No.(d), the Tindivanam Party referred to Section 47 of the Act, just for the purpose of drawing an inference that there was no bona fide use of the trade mark in view of the civil suit and writ petition filed by the Delhi Party. Apart from these vague pleadings, the Tindivanam Party failed to satisfy the requirements of Section 47(1)(a) or (b) even in their application for rectification. As stated above, to attract Section 47(1)(a), the registration of the mark itself should be shown to have been made without any bona fide intention of using the same and it must also be shown that there was, as a matter of fact, no bona fide use of the trade mark for a period of three months. A vague pleading that there was no bona fide use by t....