9911796707
TMI Blog2009 (9) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... veloped and marketed more than 80 different types of tapes with specialized applications. It is an ISO 9001:2000 company. The name of the company therefore,' according to the petitioner is indicative of its intention to be an in Nova for in Technological advancement that characterises the specialised adhesive tapes developed and manufactured by it. It is contended that the petitioner has developed goodwill and reputation that is associated with the name of the company and its products have been widely advertised since the year 1995 and at no point of time, had anyone, including the second respondent objected to the use of the name "Technova". The petitioner supplies adhesive tapes to major industries engaged in the manufacture of appliances, automobiles, electrical products, electronic products, it also supplies its products to the leather and telecom industry among others. The petitioner contends that at the time of incorporation, the name "Technova" was only intended to indicate that it was the intention of the petitioner to be a technological innovator and this intention is reflected in the successful manufacture and sale of its products and the turn-over that has consistently ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004, replied to the notice raising certain preliminary objections to the application. It was pointed out that under section 22 of the Companies Act, 1956, the power given to the Central Government must be exercised within 12 months of the change of name by the company and since the petitioner had been using the name for over eight years, the application itself was not capable of being considered. The petitioner also contended that it had not been provided with copies of certain exhibits referred to by the second respondent in its application and that copies of the same be provided to enable the petitioner to file its detailed objections. It was also highlighted by the petitioner that the proviso to section 22(1) came into force on September 15, 2004 and even if power was sought to be exercised under the said proviso, it would not apply to the petitioner's case, since the petitioner had changed its name in the year 1995, eight years before the amendment had come into force, and the same could not be applied retrospectively to the petitioner. The petitioner also sought to point out that the official Bangalore Telephone Directory for the year 1997 and 2000 displayed the petitioner's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trade mark, whether a company or not. In the case on hand, the application was made by the second respondent as the holder of a trade mark, namely, the registered trade mark of the second respondent which is identical with the name of the petitioner which is capable of creating a doubt or confusion as between the trade mark and the name of the petitioner-company. It is further contended that under the unamended section, the limitation of one year that existed for applications being made remaining unaltered, the same would apply to applicants of the second category, namely, holders of registered trade marks. As the proviso providing for five years to make such an application cannot override the main clause is an argument that is misplaced and incorrect. It is contended by the second respondent that the main clause in the section and the proviso operate in different spheres. In that, the proviso makes a separate provision for the newly added category of applicants, namely, the holders of trade marks. To read the section in any other fashion, or as canvassed by the petitioner, would render meaningless and otiose the words "five years" and "of coming to notice of the registration of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company. Respondent No. 2 could not feign ignorance of the registration of the petitioner-company from the year 1995 having regard to the wide and extensive advertisements made by the petitioners. The interpretation of the authority that the period of five years prescribed under the proviso to section 22, is to be construed from the date the proviso was introduced, would result in introducing words into the section which is impermissible in law. The language used in the proviso clearly indicates that no application shall be entertained by the Central Government five years after the fact of registration of the company coming to the notice of the registered proprietor of the trade mark. Further, as the statutory provision contemplates penal consequences, there was no scope for a liberal construction of the same. On the face of it, the application was barred by limitation. It is contended that the proviso to section 22(1)(ii) introduced by way of amendment in the year 2000, has retrospective effect and does not have prospective implication and therefore, the prescription of five years has to be construed from the date when the amendment came into force. It is contended that the rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sultan Tobacco Co. Ltd. [1997] 4 SCC 201 ; and (21)London Rubber Co. Ltd. v. Durex Products Incorporated, AIR 1963 SC 1882. 6. On the other hand, Shri K.G. Raghavan, senior advocate, appearing for counsel for the respondent while reiterating the stand taken by the respondent in its pleadings contends that the main argument of the petitioner is that the application was barred by limitation. The interpretation canvassed by the petitioner is erroneous as the express provision for the starting point of limitation is the date of coming to know of notice of registration of the company and this cannot be held to mean the date of registration of the subsequent company. If that was the intention, the Legislature would have used the words "five years from the date of incorporation". It is pointed out that the object of section 22 is meant to correct errors in the performance of ministerial functions by the registering authority. Even under the unamended section, the petitioner could never have obtained registration using the name "Technova" since the second respondent was already registered with the same name. Neither the general public at large nor the second respondent can be penalised o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own by Jaimini in Chapter II, Sutra 9 which states : The inconsistencies asserted are not actually found. The conflicts consist in difference of application. The real intention is not affected by application. Therefore, there is consistency . . .' 47. One of the Mimansa principles is the gunapradhan axiom, and since we are utilising it in this judgment (apart from the badha and samanjasya principles) we may describe it in some detail. 48. 'Guna' means subordinate or accessory, while 'pradhan' means principle. The gunapradhan axiom states : 'If a word or sentence purporting to express a subordinate idea clashes with the principal idea, the former must be adjusted to the latter or must be disregarded altogether.' This principle is also expressed by the popular maxim known as matsya nyaya i.e., the bigger fish eats the smaller fish. 49. According to Jaimini, acts are of two kind, principal and subordinate (see Jaimini 2:1:6). In Sutra 3:3:9 Jaimini states : Kumarila Bhatta, in his Tantravartika (see Ganganatha Jha's English translation, volume 3, page 1141) explains this sutra as follows : When the primary and the accessory belong to two different vedas, the vedic characterist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004 at pages 71-74 several decisions of this court and foreign courts have been referred to where the court has added words to a statute (though cautioning that normally this should not be done). 56. Hence we have to add the aforementioned words at the end of section 175 otherwise there will be an irreconcilable conflict between section 174 and section 175." 8. Shri Raghavan would hence submit that in the light of the above interpretation the petition be dismissed. 9. In the above background, the point that would arise for consideration by this court is whether an application under section 22 of the Companies Act, 1956, as amended by the Trade Marks Act, 1999, in terms of section 158 and the Schedule thereto of the Trade Marks Act, 1999, was maintainable, at the instance of the second respondent herein before the first respondent against the petitioner. 10. It is seen that the second respondent was registered as a company in the year 1979 in the name of "Technova Plate Making Systems". It was subsequently changed to "Technova Imaging Systems (P.) Ltd." in 1993; However, the word "Technova" was part of its corporate identity since 1979. The petitioner on the other hand has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion given under clause (b) of sub-section (1), the company, and every officer who is in default, shall be punishable with fine which may extend to one hundred rupees for every day during which the default continues." Amended section 22 : "22. Rectification of name of company.-(1) If, through inadvertence, or otherwise, a company on its first registration 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner is identical with and resembles the name of the second respondent and has issued the direction by the impugned order. 14. The language of the section is certainly found wanting in clarity. If the section is construed, on a plain reading, that the Central Government1 or such other competent authority is empowered to direct rectification-of the name of a company which is identical with or resembles the name of a company which is already in existence, within twelve months of the registration of such company. The proviso affording a registered proprietor of a trade mark five years time, after coming to its notice of a registered company, with an identical or nearly resembling its own registered trade mark, while there is no corresponding enabling power or jurisdiction afforded to entertain an application by the competent authority or the Central Government in the section, it is only to be implied, this is an apparent incongruity. But in order to avoid rendering the provision nugatory, where it seeks to protect the interest of a registered proprietor of a trade mark, the section would necessarily have to be given the interpretation suggested by respondent No. 2 herein namely, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent in the facts and circumstances of the present case.
17. The contentions of the respondent that the petitioner had made attempts to seek registration of trade marks with the word "Technova" in the year 1989 and that the respondent learnt about it in or about the year 2002, and had filed objections to the grant of such trade marks, etc., would also indicate that there is no certainty that the second respondent was unaware of the petitioner's existence and therefore, the application was not belated. In any event, it may be safely said that the second respondent's remedy under section 22 had become barred under the unamended provision. The second respondent then could not, under a different avatar as the proprietor of a registered trade mark, claim an extended period of limitation for purposes of the Companies Act. The remedy, if any, against infringement of a registered trade mark is concerned, being available to the second respondent to be established and adjudicated in independent proceedings, the application, by the second respondent under section 22, was clearly barred and therefore, the impugned order is bad in law and is accordingly quashed. X X X X Extracts X X X X X X X X Extracts X X X X
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