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TMI Blog2019 (2) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... on the ground that it was highly belated, and more than five years had passed from the date of incorporation of respondent no. 4 company. The petitioner claims that its application was filed within a period of five years of becoming aware of the respondent no. 4 company and, therefore, within the period as stipulated in the proviso to Section 22(1)(ii) of the Companies Act. Factual Background 3. The petitioner is a company organized under the Laws of Japan. The petitioner claims that it was established on 26th October, 1936 and is a company of international repute. The petitioner is engaged in the business of manufacturing and marketing spark plugs and related products for internal combustion engines and new ceramics and applicable products. The petitioner further claims that it has more than 5000 employees. 4. The petitioner claims that it is the proprietor of the Trademarks ʻNGKʼ and ʻNTKʼ in respect of its products, and the said trademarks are registered in more than 80 countries in the world. The petitioner claims that NTK is its registered trademark in Class 9 and in Class 7 bearing the registration No. 522466 and 698501, respectively. The petitioner cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 case may be, or within twelve months of the commencement of this Act, whichever is later, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name within a period of three months from the date of the direction or such longer period as the Central Government may think fit to allow. Provided that no application under clause (ii) made by a register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where there is no ambiguity in the language of the statute, the same must be literally construed. However, in another cases, it would be necessary for the Court to press into service other principles of statutory interpretation to ascertain the legislative intent. The proviso to Section 22(1)(ii) of the Companies Act is to preclude the registered proprietor of the Trademark from making an application under Section 22(1)(ii) of the Companies Act beyond the period of five years of such proprietor coming to notice of the company. It is clearly implicit from the language of the said proviso that a proprietor of a registered trademark can make an application under Section 22(1)(ii)(b) of the Companies Act within a period of five years. This is the clear intention of the legislature in including the proviso. 19. It necessarily follows that the power of the RD to issue a direction under Section 22(1)(ii)(b) of the Companies Act beyond the period of twelve months must be read the provision of Section 22(1)(ii)(b) of the Companies Act. In Technova Tapes (India) P. Ltd. v. Regional Director, Ministry of Company Affairs, Southern Region and Another: (2010) 155 Comp. Cas. 395 (Kar), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s period of five years in the use of a registered trade mark, being aware of that use, he shall no longer be entitled on the basis of that earlier trade mark ‒ (a) to apply for a declaration that the registration of the later trade mark is invalid, or (b) to oppose the use of the later trade mark in relation to the goods or services in relation to which it has been so used, unless the registration of the later trade mark was not applied in good faith." 22. It is apparent that the legislative intent of introducing of proviso to Section 22(1)(ii) of the Companies Act was to incorporate the principle of acquiescence in the said provision in conformity with the intent of enacting Section 33(1) of the Trademarks Act, 1999. However, it is apparent that the legislature had failed to carry out corresponding amendment in the language of Section 22(1)(ii)(b) of the Companies Act. 23. In view of the above, this Court is of the view that the power of the Central Government to issue a direction for change in the name of the company, even beyond the period of twelve months from the date of first registration or from the date of registration of the change of name, must be read in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irection would not extend beyond the period of five years from the date of first registration or from the date of registration of the name of the change in the name of the company. 28. As noticed above, there is a conflict in the plain language of the main provision - Section 22(1)(ii)(b) - and the plain language of the proviso to Section 22(1)(ii) of the Companies Act. Whereas, the proviso to Section 22(1)(ii)(b) precludes a proprietor of a registered trademark to make an application after a period of five years of coming to notice of registration of the company, Clause (b) of Section 22(1)(ii) of the Companies Act obliges a company to change its corporate name, if so directed by the Central Government within a period of twelve months of the registration of the name. Clearly, if the said clause is construed on the basis of the literal interpretation of its language, a company would be obliged to change its name only if the Central Government so directs within twelve months of the registration. In other words, a company would not be obliged to change its name if the Central Government does not issue directions to the aforesaid effect within a period of twelve months from the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner's application was rejected by the RD. 35. Quite apart from the merits of the impugned order, this Court is also of the view that no interference by this Court would be warranted in the facts of this case. Even according to the petitioner, the petitioner was fully aware of the existence of respondent no.4 as early as on 03 April, 2006. Yet the petitioner waited for over more than two and a half years for filing an application before the RD. 36. The RD had rejected the petitioner's application by the impugned order dated 25th July, 2011. The petitioner once again waited for more than two years to file the present petition. The explanation that the petitioner was not aware that its application had been rejected, cannot be accepted. The language of the impugned order is clear and the RD had found the petitioner's application to be not maintainable. Further, the petitioner has not pursued this petition diligently, as is apparent from the fact that the same had been dismissed in default on two occasions but had subsequently been restored. Remedy under Article 226 of the Constitution of India is a discretionary remedy and this Court is of the view that in these facts, exercise of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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