Contact us   Feedback   Subscription   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (1) TMI 759 - SUPREME COURT

2016 (1) TMI 759 - SUPREME COURT - TMI - Rectification of register where trademark 'BLENDERS PRIDE' was registered by inadvertence/error - time for filing notice of opposition within the three month - power of the Registrar to correct his own mistakes under Section 57(4) of the Act - interpretation of Section 125 - Held that:- A perusal of this letter shows that the notice of opposition was taken on record. This could not have been done unless time had been extended by one month, as the said not .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

131 of the Act would not therefore apply. However, Section 131 is a pointer to the fact that the extension of time by the Registrar is a ministerial act for which no hearing is required.

It is thus clear that time has been extended by the Registrar, as is evidenced by the letter dated 16.2.2004. Therefore, it is clear that any registration certificate granted prior to the 30 days extended period from 6.1.2004 would be violative of Section 23(1) of the Act. In this view of the matter, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

k 'BLENDERS PRIDE' in their favour. It may also be noticed that the suit is both a suit for infringement as well as passing off, and it is significant that Austin Nichols has not been made a party defendant to the said suit. Also, the very issue as to validity of the registration of the trademark concerned has to be determined in the application for rectification of the register, which would obviously bind only the parties to the suit and nobody else. For these reasons, the application for recti .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ection 57(4) to maintain the purity of the register, there could conceivably be cases where a defendant, after raising the plea of invalidity in a suit for infringement, chooses not to proceed with the filing of a rectification petition before the Appellate Board - The Registrar's power to maintain the purity of the register of trademarks would still remain intact even in such cases, as has been held by the judgment in Hardie's case.

The Division Bench judgment requires no interferenc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s coined and adopted the trademark 'BLENDERS PRIDE' through its licensee M/s Seagram Company Limited in the year 1973. According to respondent No.4, on account of extensive sales and marketing worldwide, the trademark 'BLENDERS PRIDE' has come to acquire a tremendous reputation in various countries including India. In order to secure its proprietary rights in the said trademark, respondent No.4 had applied for and was granted registration of the said trademark in more than 50 cou .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d Form TM-44 seeking extension of one month's time for filing its notice of opposition against the appellant's application on 6.1.2004, i.e. within the statutory period of three months. On 19.1.2004, respondent No.4 had filed its notice of opposition before the Trade Marks Registry, New Delhi and the same was numbered as DEL-160325. On 16.2.2004, the Trade Marks Registry issued a notice to the appellant inviting its counter statement to the said notice of opposition, and had stated that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

was received from the Registry, respondent No.4 filed a writ petition before the Delhi High Court being Writ Petition Nos. 2712 and 2713 of 2005. Meanwhile, on 16.2.2005, a show cause notice was issued by the Registrar under Section 57(4) of the Trade Marks Act, 1999 to the appellant, in which it was said that the registration certificate had been issued wrongly, and since the said trademark was wrongly on the register of trademarks, it was proposed to rectify the register under Section 57(4) as .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

n which it took the plea that the show cause notice itself was not maintainable as it was issued by the Registrar of Bombay and not New Delhi. Further, it was stated that the opposition filed by respondent No.4 on 19.1.2004 was clearly beyond time as it was not filed within three months from the relevant date, which is 6.1.2004, and it was thereafter pleaded that the show cause notice be withdrawn. 5. Meanwhile, on 14.1.2005, a suit for infringement of its trademark had been filed by the appella .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ad that the registration obtained by the plaintiff (i.e. the appellant herein) is void ab initio and confers no right on the plaintiff and, therefore, questioned the very maintainability of the suit for infringement. 6. While matters stood thus, after considering the reply of the appellant, the Registrar, on 26.5.2005, referred to the show cause notice dated 16.2.2005 and the reply of the appellant thereof and stated that the impugned mark was registered by inadvertence/error and that it was pro .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

and an interim order of stay was obtained against the said order on 31.5.2005. Ultimately, on 13.9.2005, the Delhi High Court directed the Registrar to dispose of the proceedings before it on or before 16.11.2005. 8. The Registrar, by his order dated 14.11.2005, recalled the show cause notice issued, stating that he had no jurisdiction to proceed in the matter inasmuch as, under Section 125 of the Act, the proceedings could only legally continue before the Appellate Board and not before him. 9. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e registration of the trademark on 13.1.2004, that is even before the expiry of the extended one month, would obviously be contrary to Section 23 of the Act and would therefore be invalid in law. Significantly, the Appellate Board held that when the show cause notice was issued on 16.2.2005, Seagram had not yet filed its counterstatement as it was not even served with the suit papers, and that, since the suit had not been filed against respondent no.4, but had only been filed against Seagram, Se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Appellate Board order and sustained the order dated 14.11.2004 passed by the Registrar. According to the learned Single Judge, Section 125 of the Act would apply and would therefore bar proceedings before the Registrar. The learned Single Judge, therefore, following the judgment of this Court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 8 SCC 1, held that the Section would apply as the defendant in the infringement suit had filed a written statement questioning .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d. and another v. Addisons Paint & Chemicals Ltd., (2003) 11 SCC 92. It was further held that the power of the Registrar to correct his own mistakes under Section 57(4) of the Act is wholly independent of the right of a party to make or not to make an application for rectification of the register, referred to in Section 125. If Section 125 were to be applied, the effect would be that an error committed by the Registrar may remain on the register if the defendant, after raising a plea of inva .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the Act clearly mandates that only after the statutory period for filling opposition has expired, a registration certificate could be granted. The Appellant had filed an application for extension of time in filing opposition to the registration of trade mark of the 4th Respondent and the notice of opposition was taken on record by the Registrar. The above fact is evident from the show cause dated 16th February, 2004 and the interim order of 26th May, 2005. In the absence of an order rejecting s .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e has been done by the Appellate Board in directing de novo hearing of the case. Consequently the appeal is allowed and the order of the learned single Judge is set aside. No order as to costs." [at para 22 and 23] 12. Smt. Prathiba Singh, learned senior advocate appearing on behalf of the appellant herein, essentially argued that though the application for extension of time by one month had been filed before the period of three months ended, yet as the Registrar had not passed any order co .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ertificate issued on 13.1.2004 was in accordance with law. Further, as the show cause notice dated 16.2.2005 had been issued from Bombay, it was clearly without jurisdiction. Therefore, in view of a written statement having been filed in the infringement suit filed by the appellant's licensee taking up the plea of invalidity of registration, Section 125 applied on all fours, and the judgment of this Court in Whirlpool Corporation (supra) would apply to render rectification proceedings before .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ued that the suo motu powers of the Registrar under Section 57(4) of the Act are taken away by Section 125(1) of the Act inasmuch as the non obstante clause covers the whole of Section 57. Where the legislature intends to specify only a sub-section, it has made it clear in express language to that effect. For that purpose, she referred to Section 107(1) of the Trade and Merchandise Marks Act, 1958 which refers to the whole of Section 46, the whole of Section 56, and only Section 47 sub-section ( .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

behalf of respondent No.4, supported the judgment of the Division Bench of the Delhi High Court. He argued before us that when the Registrar issued the letter dated 16.2.2004 under Section 21(2) of the Act and called for a counter-statement under the said Section from the appellant herein to the notice of opposition filed by respondent No.4, it was clear that the extension of time applied for within time had been allowed. He referred in particular to Section 131 of the Act and stated that the Re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t taken away by Section 125 of the Act, stressing that Section 125 of the Act concerned itself with "an application for rectification of the register." He referred us to the definition of "Tribunal" under Section 2(ze) and stated that where a proceeding is pending before the Registrar, it would necessarily be a "Tribunal" for all purposes under the Act. He argued that the judgment in Hardie's case (supra) was correctly referred to and relied upon by the Delhi Hi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

set out the various statutory provisions contained in the Trade Marks Act, 1999:- "Section 2 - Definitions and interpretation (1) In this Act, unless the context otherwise requires,- (ze) "tribunal" means the Registrar or, as the case may be, the Appellate Board, before which the proceeding concerned is pending; Section 21 - Opposition to registration (1) Any person may, within three months from the date of the advertisement or re-advertisement of an application for registration .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

o the Registrar in the prescribed manner a counterstatement of the grounds on which he relies for his application, and if he does not do so he shall be deemed to have abandoned his application. (3) If the applicant sends such counter-statement, the Registrar shall serve a copy thereof on the person giving notice of opposition. (4) Any evidence upon which the opponent and the applicant may rely shall be submitted in the prescribed manner and within the prescribed time to the Registrar, and the Re .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

neither resides nor carries on business in India, the Registrar may require him to give security for the costs of proceedings before him, and in default of such security being duly given, may treat the opposition or application, as the case may be, as abandoned. (7) The Registrar may, on request, permit correction of any error in, or any amendment of, a notice of opposition or a counter-statement on such terms as he thinks just. Section 23 - Registration (1) Subject to the provisions of section .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

registered shall be registered as of the date of the making of the said application and the date shall, subject to the provisions of section 131, be deemed to be the date of registration. (2) On the registration of a trade mark, the Registrar shall issue to the applicant a certificate in the prescribed form of the registration thereof, sealed with the seal of the Trade Marks Registry. (3) Where registration of a trade mark is not completed within twelve months from the date of the application by .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

d manner to the Appellate Board or to the Registrar by any person aggrieved, the tribunal may make such order as it may think fit for cancelling or varying the registration of a trade mark on the ground of any contravention, or failure to observe a condition entered on the register in relation thereto. (2) Any person aggrieved by the absence or omission from the register of any entry, or by any entry made in the register without sufficient cause, or by any entry wrongly remaining on the register .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r to the parties concerned and after giving them an opportunity of being heard, make any order referred to in subsection (1) or sub-section (2). (5) Any order of the Appellate Board rectifying the register shall direct that notice of the rectification shall be served upon the Registrar in the prescribed manner who shall upon receipt of such notice rectify the register accordingly. Section 124 - Stay of proceedings where the validity of registration of the trade marks is questioned, etc. (1) Wher .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

trade mark are pending before the Registrar or the Appellate Board, stay the suit pending the final disposal of such proceedings; (ii) if no such proceedings are pending and the court is satisfied that the plea regarding the invalidity of the registration of the plaintiff's or defendant's trade mark is prima facie tenable, raise an issue regarding the same and adjourn the case for a period of three months from the date of the framing of the issue in order to enable the party concerned t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

within such extended time as the court may allow, the issue as to the validity of the registration of the trade mark concerned shall be deemed to have been abandoned and the court shall proceed with the suit in regard to the other issues in the case. (4) The final order made in any rectification proceedings referred to in sub-section (1) or subsection (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order in so far as it relates to the issue as t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ment of a registered trade mark the validity of the registration of the plaintiff's trade mark is questioned by the defendant or where in any such suit the defendant raises a defence under clause (e) of sub-section (2) of section 30 and the plaintiff questions the validity of the registration of the defendant's trade mark, the issue as to the validity of the registration of the trade mark concerned shall be determined only on an application for the rectification of the register and, notw .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ade to him in the prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the time for doing any act (not being a time expressly provided in this Act), whether the time so specified has expired or not, he may, subject to such conditions as he may think fit to impose, extend the time and inform the parties accordingly. (2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the parties before disposing of an application for ext .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

r important fact to notice is that the notice of opposition dated 19.1.2004 was made within the extended period of one month, and was expressly taken on record by the Registrar, as is reflected in the Registrar's letter dated 16.2.2004. Since this letter is of crucial importance in deciding this case, it is set out in full:- "REGD. POST A.D. No. TOP/ Date: 16- Feb-2004 From: The Registrar of Trade Marks To, M/s. The ACME Co. Delhi-110001 Subject: Opposition No. 160325 to Application No. .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

which you/ the applicant rely for your/ their application should be filed at this office in triplicate on form TM- 6 within two months from the receipt by you of the copy of the notice of opposition. The counterstatement should also set out what facts if any, alleged in the notice of opposition are admitted by you/ the applicants. I am further directed to inform you that if such a counterstatement is not received in this Registry within the aforesaid time you that applicants will be deemed to ha .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

sition was filed only on 19.1.2004, i.e. within the 30 days period after three months were over on 6.1.2004. Though Section 131 of the Act refers to the Registrar's satisfaction and refers to conditions which he may think fit to impose, it is clear that he need not pass a separate order in every case if he wishes to extend the time. The decision of the Madras High Court being M/s Allied Blenders and Distillers Private Limited, Mumbai v. Intellectual Property Appellate Board, Chennai & Or .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e by the Registrar is a ministerial act for which no hearing is required. 17. Smt. Prathiba Singh also argued that the expression "allows" in Section 21(1) would further show that there has to be an order in writing granting an extension of time and no such order has been produced in the present case. She also cited M. Mazharuddin Ali v. Govt. of A.P., (2000) 10 SCC 383, at paragraphs 7 and 11, to show that in the context of relaxation of Rules made under Article 309, a specific relaxa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rther case of the appellant. Also, it is settled law that procedural provisions are to be construed in a manner that advances and does not subvert the cause of justice. This Court in paragraphs 28 and 29 in Kailash v. Nanhku, (2005) 4 SCC 480, has held as under:- "All the rules of procedure are the handmaid of justice. The language employed by the draftsman of processual law may be liberal or stringent, but the fact remains that the object of prescribing procedure is to advance the cause of .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re pertinent: (SCC p. 777, paras 5-6) "The mortality of justice at the hands of law troubles a judge's conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justitiae where the tragic sequel otherwi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

andmaid and not the mistress, a lubricant, not a resistant in the administration of justice." In Ghanshyam Dass v. Dominion of India [(1984) 3 SCC 46] the Court reiterated the need for interpreting a part of the adjective law dealing with procedure alone in such a manner as to subserve and advance the cause of justice rather than to defeat it as all the laws of procedure are based on this principle." [at paras 28 and 29] 18. It is thus clear that time has been extended by the Registrar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

erefrom. 19. We may dispose of an argument made by Smt. Prathiba Singh that the show cause notice dated 16.2.2005 under Section 57(4) of the Act was without jurisdiction as it was issued by the Registrar in Bombay and not by the authorities in Delhi. As the application for registration of the trademark was made in Delhi, and all the subsequent proceedings took place in Delhi, this show cause notice should also have been issued only in Delhi. 20. We may observe that under Section 57(4) of the Act .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

for the purposes of this Act. (2) The Central Government may appoint such other officers with such designations as it thinks fit for the purpose of discharging, under the superintendence and direction of the Registrar, such functions of the Registrar under this Act as he may from time to time authorise them to discharge." 21. It is clear therefore that the power to be exercised under Section 57(4) can only be exercised by the Registrar of Trade Marks himself. There is only one such Registra .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

defendant pleads that the registration of the plaintiff's trademark is invalid, then the court trying the suit shall stay the suit pending final disposal of rectification proceedings either before the Registrar or the Appellate Board, as the case may be. 23. The scheme under Section 124 is of great importance in understanding the scope of Section 125. It is clear that where proceedings for rectification of the register are pending before the filing of the suit for infringement in which the d .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ot before the Registrar. 24. It will be noticed that Section 124(1) refers only to the plaintiff and defendant of a suit for infringement, and Section 124(1)(ii) specifically refers to the "party concerned" who will apply to the Appellate Board for rectification of the register. Similarly, Section 125 also refers only to the "plaintiff" and the "defendant" in a suit for infringement of a registered trademark. It is obvious, therefore, that an application for rectifi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

case) by the defendant in the suit for infringement. The defendant being Seagram and not Austin Nichols, it is clear that the Section would have no application. The submission of Smt. Prathiba Singh that Seagram is only the licensee of Austin Nichols and that the authorized signatory of both parties are the same holds no water for the reason that Austin Nichols is not said to violate the registered trademark of the appellant herein. Seagram again happens to be two separate Companies - Seagram Ma .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ecific averment by the plaintiffs that upon necessary inquiries being made, the plaintiffs have learnt that the defendants have not even applied for registration of the trademark 'BLENDERS PRIDE' in their favour. It may also be noticed that the suit is both a suit for infringement as well as passing off, and it is significant that Austin Nichols has not been made a party defendant to the said suit. Also, the very issue as to validity of the registration of the trademark concerned has to .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

gister, and not to the exercise of suo motu powers of the Registrar under Section 57(4). The reason is not hard to seek. If the Registrar is barred from undertaking a suo motu exercise under Section 57(4) to maintain the purity of the register, there could conceivably be cases where a defendant, after raising the plea of invalidity in a suit for infringement, chooses not to proceed with the filing of a rectification petition before the Appellate Board. This may happen in a variety of circumstanc .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

, held as follows:- "The phrase "person aggrieved" is a common enough statutory precondition for a valid complaint or appeal. The phrase has been variously construed depending on the context in which it occurs. Three sections viz. Sections 46, 56 and 69 of the Act contain the phrase. Section 46 deals with the removal of a registered trademark from the register on the ground of non-use. This section presupposes that the registration which was validly made is liable to be taken off .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

in public interest to maintain. Applications under Sections 46 and 56 may be made to the Registrar who is competent to grant the relief. "Person's aggrieved" may also apply for cancellation or varying an entry in the register relating to a certification trademark to the Central Government in certain circumstances. Since we are not concerned with a certification trademark, the process for registration of which is entirely different, we may exclude the interpretation of the phrase &q .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed. It was in this sense that the House of Lords defined "person aggrieved" in the matter of Powell's Trade Mark 1894 (11) RFC 4: "... although they were no doubt inserted to prevent officious interference by those who had no interest at all in the Register being correct , and to exclude a mere common informer, it is undoubtedly of public interest that they shoul .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he Applicant, so that by reason of the existence of the entry on the Register he could not lawfully do that which, but for the existence of the mark upon the Register, he could lawfully do, it appears to me he has a locus standi to be heard as a person aggrieved." (Emphasis added)" [para 30 - 32] 26. However, Smt. Prathiba Singh has argued, referring to Section 107 of the 1958 Act, that the non obstante clause in Section 125 refers to the whole of Section 57 including the suo motu powe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

lication but only explain what is meant by defensive trademarks, and it is for that reason that Section 107 refers only to Section 47(4) and not the entirety of Section 47. However, in Section 125(1) of the Trade Marks Act, 1999, the width of the expression "Section 57" is cut down by the expression "and an application for rectification of the register". Such rectification applications are referable only to Sections 57(1) and (2) and not to the suo motu power of the Registrar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Form TM-12 for renewal of the Trade Mark "Whirlpool" in Class 7 and the Registrar, by his order dated 29.07.1997, allowed the renewal for three successive periods, namely, 22.2,1977,22.2.1984 and finally 22.2.1991. Thereafter, on 8.08.1997 appellant made an application under Order 6 Rule 17 C.P.C. for amendment of the plaint in Suit No. 1705 of 1994, referred to above, so as to include the ground of infringement of the Trade Mark also in the suit but the application is still pending in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ot cancelled. Against this notice, the appellant filed a writ petition in the Bombay High Court which was dismissed on 8.12.1997. It is against this judgment that the present appeal has been filed." (at paras 6 and 7) 28. Finally, this Court's decision turned on the facts of that case as set out in paragraph nos. 72 and 73 therein. "In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellant's opposition to the r .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

uit No. 1705 of 1994) in the Delhi High Court against the respondents in which an order of temporary injunction has been granted in favour of the appellant which has been upheld by the Division Bench of the High Court as also by this Court. In that suit, an amendment application has also been filed so as to include the ground of infringement of the appellant's Trade Mark but that application has not yet been disposed of. It is, however, obvious that if the application is allowed, the amendme .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ept. 1997 Under Section 56(4) of the Act is hereby quashed. The appellants shall be entitled to their costs." [at paras 72 and 73] 29. While arriving at this conclusion on facts, this Court held:- "The extent of jurisdiction conferred by Section 56 on the Registrar to rectify the Register, is, however curtailed by Section 107 which provides that an application for rectification shall, in certain situations, be made only to the High Court. These situations are mentioned in Sub-section ( .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

termined only by the High Court and not by the Registrar. Section 107 thus impels the proceedings to be instituted only in the High Court. The jurisdiction of the Registrar in those cases which are covered by Section 107 is totally excluded. Significantly, Section 107(2) provides that if an application for rectification is made to the registrar Under Section 46 or Section 47(4) or Section 56, the Registrar may, if he thinks fit, refer that application, at any stage of the proceeding, to the High .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

court, if prima facie satisfied that the plea regarding invalidity of plaintiff s or defendant's Trade Mark is tenable, may frame an issue and adjourn the case for three months to enable the party concerned to apply to the High Court for rectification of the Register. If within three months, the party concerned does not approach the High Court, the plea regarding invalidity of Trade Mark would be treated as abandoned but if such an application has been given hearing,, the suit would be stay .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ourt", then the High Court has to be treated as "TRIBUNAL". Thus, the jurisdiction of the Registrar and the High Court, though apparently concurrent in certain matters, is mutually exclusive. That is to say, if a particular proceeding is pending before the registrar, any other proceeding, which may, in any way, relate to the pending proceeding, will have to be initiated before and taken up by the Registrar and the High Court will act as the Appellate Authority of the Registrar Und .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version