TMI Blog2013 (3) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... er person using such trademark even though the trademark Is not registered In India. Prmia facie case against the appellants - pre deposit ordered equal to 50%. - ST/578/2011 - 744/2012 - Dated:- 7-8-2012 - Shri Ashok Jindal and Mathew John, JJ. Shri Joseph Prabhakar, Advocate, for the Appellant. Shri D.P. Naidu, SDR, for the Respondent. [Order per : Mathew John, Member (T)]. - The appellants are registered with the service tax department for providing Business Auxiliary Services . During the course of verification of their accounts and records, it was noticed that Areva T D Holding SA, France had entered into a Trade Mark License Agreement with the taxpayer whereby the appellant has been granted the rights to use AREVA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ual property right; 3. His argument is that trademark AREVA is not registered in India and therefore it is not an IPR under any law for the time being in force in India and therefore the service will not be taxable as per definition of the service at Section 55(a) and 55(b) supra. He also relies on the clarification issued by the C.B.E. C. on 17-9-2004 reading as under :- 9.1 Intellectual property emerges from application of intellect, which may be in the form of an invention, design, product, process, technology, book, goodwill etc. In India, legislations are made in respect of certain Intellectual Property Rights (i.e. IPRs) such as patents, copyrights, trademarks and designs. The definition of taxable service includes only suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, it is his submission that the demand is not legally maintainable and therefore the appeal should be admitted without any pre-deposit. 6. Opposing the prayer, the learned AR for Revenue submits that the clarification dated 17-9-2004 excludes IPRs in relation to integrated circuits or undisclosed information which is not covered by Indian law. It is very clear that this clarification is in the context of patents. A patent is known only if there is full disclosure about the process or the product patented. In the case of trademark it is totally different and there is no information to be disclosed in the case of trademark because it is only a mark which is used to represent the owner of the trademark. He submits that the clarification iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cover damages for, the infringement of an unregistered trademark. (2) Nothing in this Act shall be deemed to affect rights of action against any person for passing off goods or services as the goods of another person or as services provided by another person, or the remedies in respect thereof. From sub-clause (2) of the said Section, it is clear that owner of an unregistered trademark or any other person can institute legal proceedings if someone is trying to pass off the goods representing it as goods manufactured by the owner of the trademark, even though such trademark Is not registered. 8. Thus, the short point in question is whether only a registered trademark has a right under any law for the time being in force In India and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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