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In the present case,there is no evidence from the side of the appellants indicating abandonment of the trade mark by M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Although,Madan Verma,the Director of M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Kay Aar Biscuits (P) Ltd.,has filed his Affidavit enclosing the registration certificate,he has nowhere stated that M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Ltd.has abandoned the trade mark | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the circumstances,the Department was right in rejecting the above contention | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Abandonment of the trade mark has to be proved by the appellants in the present case | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The burden is on the appellants,particularly,when the Department is relying upon the agreement dated 23.11.89 between M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Lastly,we are required to examine the retrospective effect of the registration certificate dated 30.6.2000 with effect from 30.9.91.At the outset,we may reiterate that the object of the exemption Notification was neither to protect the owners of the trade mark nor the consumers from being misled | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
These are considerations which are relevant in disputes arising under the Trade Marks Act | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The object of the exemption Notification No.1/93-CE was to grant benefits to those industries which do not have the advantage of a brand name | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
However,since retrospective nature of the registration certificate dated 30.6.2000 is repeatedly being raised in this Court we would like to examine the case law in this regard | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Trade Marks Act,1999 has been enacted to amend and consolidate the law relating to trade marks,to provide for registration and better protection of trade marks and for prevention of the use of fraudulent marks | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
U/s.28 of the Trade Marks Act,1999,registration gives to the registered proprietor of the trade mark the exclusive right to the use of the trade mark in relation to the goods in respect of which the trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Trade Marks Act | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It is correct to say that the Registrar,Trade Marks,can issue registration certificate u/s.28 of the Trade Marks Act with retrospective effect | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The question before us is : what is the effect of issuance of registration certificate with retrospective effect | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This question has been decided by the Bombay High Court in the case of Sunder Parmanand Lalwani and Others v | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Caltex (India) Ltd | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
AIR 1969 Bombay 24 1965 Indlaw MUM 1419 in which it has been held vide paras '32' and '38' as follows: "A proprietary right in a mark can be obtained in a number of ways | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The mark can be originated by a person,or it can be subsequently acquired by him from somebody else | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Our Trade Marks law is based on the English Trade Marks law and the English Acts | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The first Trade Marks Act in England was passed in 1875.Even prior thereto,it was firmly established in England that a trader acquired a right of property in a distinctive mark merely by using it upon or in connection with goods irrespective of the length of such user and the extent of his trade,and that he was entitled to protect such right of property by appropriate proceedings by way of injunction in a Court of law | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Then came the English Trade Marks Act of 1875,which was substituted later by later Acts | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The English Acts enabled registration of a new mark not till then used with the like consequences which a distinctive mark had prior to the passing of the Acts | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The effect of the relevant provision of the English Acts was that registration of a trade mark would be deemed to be equivalent to public user of such mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Prior to the Acts,one could become a proprietor of a trade mark only by user,but after the passing of the Act of 1875,one could become a proprietor either by user or by registering the mark even prior to its user | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
He could do the latter after complying with the other requirements of the Act,including the filing of a declaration of his intention to use such mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
See observations of Llyod Jacob J.in 1956 RPC 1.In the matter of Vitamins Ltd's Application for Trade Mark at p.12,and | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
particularly the following: "A proprietary right in a mark sought to be registered can be obtained in a number of ways | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The mark can be originated by a person or can be acquired,but in all cases it is necessary that the person putting forward the application should be in possession of some proprietary right which,if questioned,can be substantiated | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Law in India under our present Act is similar | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A person may become a proprietor of a trade mark in diverse ways | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The particular mode of acquisition of proprietorship relied upon by the applicant in this case is of his user for the first time in India in connection with watches and allied goods mentioned by him of the mark "Caltex",which at the material time was a foreign mark belonging to Degoumois & Co.of Switzerland and used by them in respect of watches in Switzerland | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Before the Deputy Registrar and before Mr | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Justice Shah,proprietorship was claimed on the basis that the applicant was entitled to it as an importer's mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Several authorities were cited and were considered and principles deduced and relied upon in that behalf | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In our opinion,it is not necessary in this case to go into details about facts in the various decided cases dealing with importer's marks | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In many of those cases,the dispute was between a foreign trader using a foreign mark in a foreign country on goods which were subsequently imported by Indian importers and sold by them in this country under that very mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In short it was a competition between a foreign trader and the Indian importer for the proprietorship of that mark in this country | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We have already reached a conclusion that so far as this country is concerned,Degoumois & Co.have totally disclaimed any interest in the proprietorship of that mark for watches etc | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In India,the mark "Caltex" was a totally new mark for watches and allied goods | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The applicant was the originator of that mark so far as that class of goods is concerned,and so far as this country is concerned | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
He in fact used it in respect of watches | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
There is no evidence that that mark was used by anyone else in this country before the applicant,in connection with that class of goods | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Unquestionably,the applicant's user was not large,but that fact makes no difference,because so far as this country is concerned,the mark was a new mark in respect of the class of goods in respect of which the applicant used it | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We therefore,hold that the applicant is the proprietor of that mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
emphasis supplied | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On reading the above quoted paragraphs from the above judgment,with which we agree,it is clear that the effect of making the registration certificate applicable from retrospective date is based on the principle of deemed equivalence to public user of such mark | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This deeming fiction cannot be extended to the Excise Law | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It is confined to the provisions of the Trade Marks Act | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In a given case like the present case where there is evidence with the Department of the trade mark being owned by M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Ltd.and where there is evidence of the appellants trading on the reputation of M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Ltd.which is not rebutted by the appellants (assessee),issuance of registration certificate with retrospective effect cannot confer the benefit of exemption Notification to the assessee | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the present case,issuance of registration certificate with retrospective effect from 30.9.91 will not tantamount to conferment of exemption benefit under the Excise Law once it is found that the appellants had wrongly used the trade mark of M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the case of Consolidated Foods Corporation v | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Brandon and Co.,Pvt.Ltd | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
AIR 1965 Bombay 35 1961 Indlaw MUM 91,it has been held vide paras '27' and '30' that the Trade Marks Act merely facilitates the mode of proof | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Instead of compelling the holder of a trade mark in every case to prove his proprietary right,the Act provides a procedure whereby on registration the owner gets certain facilities in the mode of proving his title | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We quote hereinbelow paras '27' and '30' of the said judgment which read as follows: "At any rate,it must be remembered that in this case I am not dealing with a passing-off action or an action for infringement of a trade mark which is alleged to be common property | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The case put up by the petitioner corporation that it was the first to use the mark "Monarch" in this country on its food products and that,in as much as the mark "Monarch" was admittedly a distinctive mark,it had acquired the right to get the mark registered in its name and also the right to oppose the application of any other trader in this country seeking to get that mark registered in his name in respect of the food products manufactured or sold by him | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Apparently,in such a case there is no question of infringement of any right of property in a trade mark for which any relief is sought,nor is there any question of passing-off,so that it might be necessary to enter into questions of nicety as regards whether there could or could not be any property in a trade mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
As already stated by me while referring to the observations of Sir John Romily,it is not really necessary for me to decide in this case as to whether there could or could not be any property in a trade mark for the purpose of deciding this case | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Even if it is found to be necessary to decide this question as to property in a trade mark,I have already pointed out that the Courts of Equity in England granted relief in cases of infringement of trade marks on the basis of infringement of the right of property in the trade mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
There was no other basis on which those Courts could give any relief to the plaintiffs in such cases and for the purpose of such relief the Courts of Equity did not require the plaintiff to prove that his mark by any length of user was associated in the minds of the public with his goods | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
All that was necessary for the plaintiff to prove was that he had used that mark in respect of his particular type of goods | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
That was enough in the eyes of the Courts of Equity to entitle him to a relief by way of an injunction in case of an infringement of his mark by some other trader | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
I have also pointed out that the statute which came to be enacted in England in 1875 and the subsequent statutes did nothing more than to embody the rights in relation to trade marks which were already laid down by the Courts of Equity | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
As a matter of fact,the statute enabled a person to have registered a mark not only which he had been using but also a mark which he proposed to use | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The latter type of mark would evidently refer to a distinctive mark,a mark which does not directly describe the nature or quality of the goods to which it is attached | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In cases of such marks,whereas the Courts of Equity did require some slight user before the proprietor thereof could institute an action for infringement thereof,the statute enabled the registration of such mark without any user at all,because such mark being distinctive per se it was not necessary for the person applying for its registration to show that mark had acquired a reputation in the market,so that it could be associated only with his goods and of nobody else | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Even so far as this country is concerned,the Trade Marks Act of 1940 does not seem to have made any change in the legal rights of the owner of a trade mark as established by the Courts of Chancery in England | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In In re Century Spinning and Manufacturing Co | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Ltd.,49 Bom LR 52 | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
AIR 1947 Bom 445),Chagla,J.(as he then was) observed in this connection : as follows "The question is whether in India the Trade Marks Act of 1940 has made any change in the legal rights of the owner of a trade mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
To my mind it is clear that even prior to the passing of this Act the owner of a trade mark could maintain an action for the infringement of a trade mark and that action could only be maintained on the assumption that he was the owner of the trade mark and he had a proprietary right in the trade mark | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sub-cl.(I) of S.20 of the Trade Marks Act itself assumes and implies that such a right existed in the owner of a trade mark because it says that the unregistered holder of a trade mark can maintain a suit for the infringement of a trade mark provided that the trade mark was in use before February | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
25,1937,and an application for registration had been made and refused | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
As regards the question whether there could be any property in a trade mark,the learned Judge further observed (on the same page) as follows: "Again,turning to S.54 of the Specific Relief Act,which deals with cases when a perpetual injunction may be granted the Explanation to that section lays down that for the purpose of that section a trade mark is property | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Therefore,if a person invaded or threatened to invade the other's right to,or enjoyment of,property,the Court u/s.54 had the discretion to grant a perpetual injunction,and trade mark was as much property for the purpose of S.54 as any other kind of property | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
I,therefore,agree with the learned Advocate General that all that the Trade Marks Act has done is to facilitate the mode of proof | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Instead of compelling the holder of a trade mark in every case to prove his proprietary right before he could ask the Court to grant him an injunction,the Trade Marks Act provides a procedure whereby by registering his trade mark the owner gets certain facilities in the mode of proving his title | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
For instance,under S.23 of the Trade Marks Act registration is to be prima facie evidence of the validity of the trade mark | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This was precisely the view which was expressed by Lord Justice Romer in (1905) 1 K.B.592 to which I have already referred in the earlier part of the judgment | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
To summarise,therefore,a trader acquires a right of property in a distinctive mark merely by using it upon or in connection with his goods irrespective of the length of such user and the extent of his trade | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The trader who adopts such a mark is entitled to protection directly the article having assumed a vendible character is launched upon the market | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
As between two competitors who are each desirous of adopting such a mark,"it is,to use familiar language,entirely a question of who gets there first | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Gaw Kan Lye v | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Saw Kyone Saing,AIR 1939 | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Rang 343 | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
FB).Registration under the statute does not confer any new right to the mark claimed or any greater right than what already existed at common law and at equity without registration | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It does,however,facilitate a remedy which may be enforced and obtained throughout the State and it established the record of facts affecting the right to the mark | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Registration itself does not create a trade mark | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The trade mark exists independently of the registration which merely affords further protection under the statute | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Common law rights are left wholly unaffected | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Priority in adoption and use of a trade mark is superior to priority in registration | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was next contended by Mr | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Shavaksha that the respondent company had itself shown Kipre and Co | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Private Ltd.,as | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
the proprietors of the mark on the labels bearing the mark "Monarch" on the different kinds of its food products and,therefore,the respondent company had no right to apply for registration in its favours as if it was the proprietor thereof | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was conceded by Mr | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Shah that the labels which were used on the food products manufactured by Kipre and Co | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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