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TMI Blog2022 (12) TMI 1541X X X X Extracts X X X X X X X X Extracts X X X X ..... acting as contract manufacturer of drugs and formulations for the last 29 years having its manufacturing unit located at B-21, SIDCO Pharmaceutical Complex Athur Tiporrur near Chennai in the state of Tamil Nadu. The petitioner company has been marketing its goods under a brand name/trade name duly registered with the appropriate authority under the Trade Marks Act. The trade mark registration has been obtained by the company for its product since 2003. (iii) The petitioner company was named as Raymond Pharmaceutical Private Limited, on the understanding that it is a common Christian name and as per the Reader's Digest Great Encyclopedic Dictionary the word meant "mighty protection". Initially the representative of the petitioner company addressed a communication dated 23.07.82 to the Registrar of Company, Karnataka suggesting three words to be prefixed namely "Raymond" "Osmond" and "Esmond" all being Christian name having an identical meaning namely "Mighty name" or "God's protection". They received a reply dated 19.08.82 from the said authority informing the petitioner that there does not appear to be any objection to the registration of the company by the name "Raymond" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is every possibility of its getting the said knowledge even on a date prior to 12.09.2005. (vii) The Bombay High Court in the above suit passed orders on 15.02.2007 dismissing the said notice of motion holding the same to be devoid of any merits. The 3rd respondent filed an appeal against the said order, which also came to be dismissed. Thereafter the 3rd respondent moved a petition for special leave to Appeal before the Hon'ble Supreme Court which also after hearing the counsels for the 3rd respondent herein refused to interfere with the judgment of the Bombay High Court. (viii) The 3rd respondent after being unsuccessful in its attempt to resist the petitioner company from using the word "Raymond" before the Bombay High Court and the Hon'ble Supreme Court, belatedly filed an application on 13.09.2010 under Sections 20 & 22 of the Companies Act before the 2 respondent herein seeking rectification of the name of the petitioner company so as to remove the word "Raymond" there from. (ix) In the said application, the 3rd respondent after adverting to the various facts narrated above claimed for the first time that it came in knowledge of the fact that the Petitioner co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal or too merely resembles the trademark owned by the 3rd respondent, however passed the impugned order dated 17.07.2012, against the petitioner. As the petitioner company is only a private limited company and do not attract any investment from the general public, to hold that the name "Raymond" as a prefix to the petitioner's company name result in misleading the general public. 5. The learned counsel appearing for the petitioner further submitted that the second respondent ought to have held that the provisions contained in Section 22 of the Companies Act, cannot be extended beyond the right available to them in terms of Section 29(5) of the Trade Marks Act viz., the right on the goods and services for which the trade mark has been registered in their name. 6. It is further contended by the learned counsel appearing for the petitioner that proviso contained in Section 22(1) read with Sub Section ii(b) of the Companies Act only provided a maximum of 12 months of a company's first registration or from the date of commencement of the Act whichever is later, the period of 5 years provided under the proviso cannot be interpreted so as to direct any company to change its nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel appearing for the 3rd respondent relied on the following judgments: (i) State of Madhya Pradesh Vs. Anshuman Shukla reported in (2008) 7 SCC 487. (ii) Surya Elevator and Escalators India Pvt. Ltd., Vs. Union of India reported in (2013) 177 Comp Cas 230 (Karn). (iii) Montari Overseas Ltd. Vs. Montari Industries Ltd. reported in ILR 1997 Delhi 64. (iv) K.G.Khosla Compressors Ltd., Vs. Khosla Extraktions Ltd. reported in AIR 1986 Delhi 181. (v) CGMP Pharmaplan Pvt. Ltd., Regional Director reported in MANU/DE/2116/2010. (vi) Mondelez Foods Private Limited Vs. The Regional Director reported in (2017) 204 Comp Cas 169. 9. I have heard the learned counsel appearing on either side and also perused the entire materials available on record carefully. 10. Challenge has been made to the impugned order dated 17.07.2012 passed by the second respondent, under Section 22 of the Companies Act directing the petitioner viz. "Raymond Pharmaceuticals Private Limited" registered in the State of Tamil Nadu, Chennai to change its name within a period of three months from the date of the said order. 11. The 3rd respondent has filed an application claiming that the writ peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with, or too nearly resembles,- (i) The name by which a company in existence has been previously registered, or (ii) a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999, may be deemed to be undesirable by the Central Government within the meaning of sub-section (1). (3) The Central Government may, before deeming a name as undesirable under clause (ii) of sub-section (2), consult the Registrar of Trade Marks." 15. A perusal of the above Section makes it clear that the name by which a company is in existence has been previously registered or a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, such company may be deemed to be undesirable by the Central Government within the meaning of sub-section (1). 16. Section 22 of the Companies Act deals with Rectification of name of company, the said section reads as follows: "Section 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 registe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of five years. As, 12.09.2005 being a Sunday, they filed the application on 13.09.2005, being the very next working day. Therefore, it is the contention of the 3rd respondent that the application filed by them is within time. 19. It is relevant to note that the 2nd respondent has conducted enquiry and also by following due procedure adjudicated the matter. Therefore, it had all the trappings of the Court while conducting proceedings and Limitation Act will certainly be applicable. The Hon'ble Apex Court in State of Madhya Pradesh Vs. Anshuman Shukla reported in (2008) 7 SCC 487 has held that Administrative Bodies and Tribunal if in fact having the characteristics, functions and powers of a Court and therefore for all intents and purposes they are Courts. 20. It is not disputed that the application has been submitted to the second respondent on 13.09.2005 and it is also not disputed that the limitation period clearly ends on 12.09.2005. It is also not disputed that 12.09.2005 is a Sunday. As 12.09.2005 being a Sunday, the 3rd respondent naturally submitted the application on the next working day and therefore the application has been filed within the period of five years. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in AIR 1986 Delhi 181 has held that the jurisdiction of the Civil Court is independent of and separate from that of the Central Government under Section 20 of the Companies Act. 27. The Delhi High Court in CGMP Pharmaplan Pvt. Ltd., Vs. Regional Director, Ministry of Corporate Affairs reported in MANU/DE/2116/2010 has held in paragraph 17 as follows: "17. The decision in Montari Overseas Limited makes it clear that a civil court exercising its powers in terms of the CPC and determining in a passing-off action if one name is confusingly deceptive or similar to another name, is exercising a jurisdiction independent of the jurisdiction of Respondent No. 1 in respect of the registering of a company"s name. The latter is a power vested in the central government in terms of Sections 20 and 22 of the Act. While it is true that the Respondent No. 1 cannot approach the case as it would in a trade mark dispute, it is nevertheless required to come to the conclusion whether the name of which the registration is sought or has been granted too nearly resembles the name of another company. Mr. Chandra is right in his contention that the powers of the central government under Section 22 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act. As the Companies Act operate in a different field, what is required to be seen in the Companies Act is whether the trademark is identical with or too nearly resembles a registered trademark. Therefore, mere assumption of identical name or name resembles a registered trademark is suffice to take action under Section 22 of the Companies Act and it is in no way dealt with goods or services. 30. Therefore, this Court is of the view that when an application has been filed within the period of five years and the name "Raymond" resembled with the name of the third respondent, the order passed by the second respondent cannot be faulted. 31. It is yet another contention of the learned counsel appearing for the petitioner that since the application has now been filed on the Online portal, the same ought to have been filed on 12.09.2005 itself. It is relevant to note that it is not a mere submission just like e-tender, it is an application to be submitted before the authority within the relevant period of time. Even the application are filed on-line, it cannot be taken as filing since the entire office of the 2nd respondent was not functioning during Sunday, therefore it cannot be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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