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1970 (3) TMI 160 - SC - Companies LawWhether the numeral '50' and the word 'Fifty' were common to the trade at the time of the original registration and were therefore not distinctive of the bells manufactured by the respondent- company, Sup. CI- 6? Whether the respondent-company had fraudulently declared at the time of registration that they were the originators or proprietors of the said two marks '50' and 'Fifty'? Held that:- No contention, therefore, can be raised that the trade marks, '50' and 'Fifty', were not distinctive, i.e., adapted to distinguish the cycle bells of the respondent-company at the date of the registration, and therefore, were not registerable as provided by s. 9. Though evidence was produced by the appellant companies to show that there were other bells in the market with 'Fifty' or '50' inscribed on them, no evidence was led to show that the use of the word 'Fifty' or the numeral '50' was substantial. In these circumstances, it is impossible to sustain the contention founded on cl. (c) of S. 32. Under s. 56, the power to rectify is undoubtedly discretionary. Where such discretion has been properly exercised, a court of, appeal would refuse to interfere. In the present case, however, the Trial Court did not appreciate the principle embodied in ss. 32 and 1 1, with the result that the Division Bench was justified in interfering with the discretion exercised by the Trial Court. Appeal dismissed.
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