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TMI Blog2012 (6) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... e interim order. The counsel for the respondent no. 2 has stated that the application for vacation of interim order be read as the counter affidavit of the said respondent. The counsels have been heard. 3. The respondent no. 2 was incorporated on 19th April, 1994 under the provisions of the Act. 4. The petitioner company was incorporated on 29th January, 2004 in the name of India Exhibition Management Private Limited. It thereafter on 17th February, 2006 changed its name to Expomedia Events India Private Limited; it yet again on 12th July, 2010 changed its name to the present name of International Trade and Exhibitions India Private Limited. 5. The respondent no. 2 company on 3rd September, 2010 filed an application under Section 22 of the Act to direct the petitioner to change its name. It was the case of the respondent no. 2 that since the full form of the abbreviation "ITE" in the name of the respondent no. 2 was also "International Trade and Exhibitions" and further since both respondent no. 2 and the petitioner were in the same business of Events, Conventions, Conference, Exhibition Organization and Management since 1994 and the respondent no. 2 had acquired tremendous repu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adopted for incorporation and which results in exploitation of names, even though they have not been registered as trademark. Accordingly, the petitioner was directed to change its name. 9. Though the senior counsels for the petitioner have contended that the order impugned is in violation of the principles of natural justice, the petitioner having been deprived of an opportunity of proper hearing and of presenting documents sought to be filed and that rather it is the respondent no. 2 who is attempting to usurp the name "International Trade and Exhibitions" internationally belonging to the corporate group to which the petitioner belongs, but in my view the petition is entitled to succeed on interpretation alone, of the provisions of Section 22 of the Act. 10. Section 20(1) of the Companies Act prohibits registration of a company by a name which in the opinion of the Central Government is undesirable. Section 20(2) provides that a name which is identical with or too nearly resembles, the name by which the company in existence has been previously registered or a registered trademark or a trademark which is subject of an application for registration of any person under the Tradem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d". Similarly, the registered trademarks of the respondent no. 2 also is "ITE India" and "ITE". Neither in the registration of the respondent no. 2 with the Registrar of Companies nor in the registered trademarks of the respondent no. 2, the words "International Trade and Exhibitions" appear. It is however the case of the respondent no. 2 that it has been using the words "International Trade and Exhibitions" in conjunction with its name "ITE India Private Limited" and with its trademarks ITE and ITE India. The respondent no. 2 along with its application has filed a number of documents to demonstrate so. However the words "International Trade and Exhibitions" used in conjunction with the registered name or with the registered trademarks do not become part of the registered name or the registered trademarks. The question which thus arises for consideration is whether the enquiry under Section 22 which the Central Government is empowered to undertake, extends to test of identical and too near resemblance with names though used, but not registered. 14. I am, on an interpretation of the Section 22, unable to hold so. Had the intent of the Legislature been to permit rectification of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance with registered names and marks only. 16. The Central Government in the present case however has found the name of the petitioner to be identical with and too near resemblance with a name and mark which the respondent no. 2 claimed to be using but which is not registered. The same as aforesaid is not permissible under Section 22. The order impugned thus cannot be sustained. 17. Insofar as the reference in the impugned order to the Guidelines is concerned, though in my opinion the guidelines cannot be contrary to the statutory provision and if so have to be ignored (see Comptroller & Auditor General of India v. Mohan Lal Mehrotra, [1992] 1 SCC 20, State of M.P. v. G.S. Dall & Flour Mills, [1992] Supp (1) SCC 150, Union of India v . Rakesh Kumar, [2001] 4 SCC 309, Dr. Rajinder Singh v. State of Punjab, [2001] 5 SCC 482 & Subhash Ramkumar Bind v. State of Maharashtra, [2003] 1 SCC 506) but the said Guidelines known as "Departments' Guidelines for deciding cases for availability of names" as available on the website of the Registrar of Companies, while referring to the General Circular No. 24 dated 21st November, 2001 provides that a name in the category inter alia mentioned be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Hindustan Fertilizers Limited 18. However, the Guidelines aforesaid are for considering the availability of names i.e. under Section 20 of the Act and do not refer at all to Section 22 of the Act. The Registrar under Section 20 of the Act is entitled to refuse registration by a name which in the opinion of the Central Government is "undesirable". Identity or resemblance with a name by which a Company is in existence and/or with a registered trademark is but one of the facets of "undesirable". This is so evident from the commencement of Sub-Section (2) of Section 20 with the words "Without prejudice to the generality of the foregoing powerâEUR¦âEUR¦âEUR¦" Thus a name may be undesirable even though not identical with or too nearly resembling the name of a Company in existence or a registered trademark. What the guidelines aforesaid provide is that identity with or resemblance with a name resembling popular or abbreviated descriptions of important companies even though unregistered would fall in the category of undesirable. However, Section 22 while providing for rectification only provides for rectification of undesirable names falling withi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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