TaxTMI 
TaxTMI 
2019 (2) TMI 970
X X X X Extracts X X X X
X X X X Extracts X X X X
....99;RDʼ) rejected the aforesaid application on the ground that it was highly belated, and more than five years had passed from the date of incorporation of respondent no. 4 company. The petitioner claims that its application was filed within a period of five years of becoming aware of the respondent no. 4 company and, therefore, within the period as stipulated in the proviso to Section 22(1)(ii) of the Companies Act. Factual Background 3. The petitioner is a company organized under the Laws of Japan. The petitioner claims that it was established on 26th October, 1936 and is a company of international repute. The petitioner is engaged in the business of manufacturing and marketing spark plugs and related products for internal combustion engines and new ceramics and applicable products. The petitioner further claims that it has more than 5000 employees. 4. The petitioner claims that it is the proprietor of the Trademarks ʻNGKʼ and ʻNTKʼ in respect of its products, and the said trademarks are registered in more than 80 countries in the world. The petitioner claims that NTK is its registered trademark in Class 9 and in Class 7 bearing the registration N....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ration or on its registration by a new name, is registered by a name which- (i) in the opinion of the Central Government, is identical with, or too nearly resembles, the name by which a company in existence has been previously registered, whether under this Act or any previous companies law, the first-mentioned company, or (ii) on an application by a registered proprietor of a trade mark, is in the opinion of the Central Government identical with, or too nearly resembles, a registered trade mark of such proprietor under the Trade Marks Act, 1999, such company, (a) may, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name ; and (b) shall, if the Central Government so directs within twelve months of its first registration or registration by its new name, as the case may be, or within twelve months of the commencement of this Act, whichever is later, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name within a period of three months from the date of the direction or such longer period as the Centr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e inferred. 18. The provisions of the statute must be interpreted to ascertain the intention of the legislature. In cases where there is no ambiguity in the language of the statute, the same must be literally construed. However, in another cases, it would be necessary for the Court to press into service other principles of statutory interpretation to ascertain the legislative intent. The proviso to Section 22(1)(ii) of the Companies Act is to preclude the registered proprietor of the Trademark from making an application under Section 22(1)(ii) of the Companies Act beyond the period of five years of such proprietor coming to notice of the company. It is clearly implicit from the language of the said proviso that a proprietor of a registered trademark can make an application under Section 22(1)(ii)(b) of the Companies Act within a period of five years. This is the clear intention of the legislature in including the proviso. 19. It necessarily follows that the power of the RD to issue a direction under Section 22(1)(ii)(b) of the Companies Act beyond the period of twelve months must be read the provision of Section 22(1)(ii)(b) of the Companies Act. In Technova Tapes (India) P. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Trademarks Act, 1999 is set out below:- "(1) Where the proprietor of an earlier trade mark has acquiesced for a continuous period of five years in the use of a registered trade mark, being aware of that use, he shall no longer be entitled on the basis of that earlier trade mark ‒ (a) to apply for a declaration that the registration of the later trade mark is invalid, or (b) to oppose the use of the later trade mark in relation to the goods or services in relation to which it has been so used, unless the registration of the later trade mark was not applied in good faith." 22. It is apparent that the legislative intent of introducing of proviso to Section 22(1)(ii) of the Companies Act was to incorporate the principle of acquiescence in the said provision in conformity with the intent of enacting Section 33(1) of the Trademarks Act, 1999. However, it is apparent that the legislature had failed to carry out corresponding amendment in the language of Section 22(1)(ii)(b) of the Companies Act. 23. In view of the above, this Court is of the view that the power of the Central Government to issue a direction for change in the name of the company, even b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....almost six years. 27. There is yet another perspective which persuades this Court to accept that the power of the Central Government to issue a binding direction would not extend beyond the period of five years from the date of first registration or from the date of registration of the name of the change in the name of the company. 28. As noticed above, there is a conflict in the plain language of the main provision - Section 22(1)(ii)(b) - and the plain language of the proviso to Section 22(1)(ii) of the Companies Act. Whereas, the proviso to Section 22(1)(ii)(b) precludes a proprietor of a registered trademark to make an application after a period of five years of coming to notice of registration of the company, Clause (b) of Section 22(1)(ii) of the Companies Act obliges a company to change its corporate name, if so directed by the Central Government within a period of twelve months of the registration of the name. Clearly, if the said clause is construed on the basis of the literal interpretation of its language, a company would be obliged to change its name only if the Central Government so directs within twelve months of the registration. In other words, a company would....