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See Orissa University of Agriculture & Technology and Another vs. Manoj K. Mohanty (2003) 5 SCC 188 2003 Indlaw SC 348 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In State of Haryana and Another vs. Tilak Raj and Others [(2003) 6 SCC 123] 2003 Indlaw SC 512, it was held : "A scale of pay is attached to a definite post and in case of a daily-wager, he hold no posts | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The respondent workers cannot be held to hold any posts to claim even comparison with the regular and permanent staff for any or all purposes including a claim for equal pay and allowances | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
To claim a relief on the basis of equality, it is for the claimants to substantiate a clear-cut basis of equivalence and a resultant hostile discrimination before becoming eligible to claim rights on a par with the other group vis-'-vis an alleged discrimination | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
No material was placed before the High Court as to the nature of the duties of either categories and it is not possible to hold that the principle of "equal pay for equal work" is an abstract one | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The said decision has been noticed in A. Umarani 2004 Indlaw SC 606 (supra | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
CONCLUSION | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
For the reasons aforementioned, we do not find any merit in these appeals, which are dismissed accordingly | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
There shall, however, be no order as to costs | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Appeals dismissed | Ruling by Present Court | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Leave granted | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Interpretation of the provisions of S.46(1)(b) of the Trade and Merchandise Marks Act,1958 (hereinafter called and referred to for the sake of brevity as 'the said Act') is involved herein | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The factual matrix of the matter,which is not much in dispute is as under | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
First Respondent is the registered proprietor of a trade mark 'Field Marshal' for Diesel Engines since 1964 bearing No.228867.One M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries got the trade mark 'Field Marshal' registered under clause (7),inter alia,for Flour Mills,Centrifugal Pumps,couplings for machines,pulleys included in class 7 and valves (parts of machines).The said registration was renewed for the periods 13.5.1972 and 12.5.1979; 13.5.1979 and 12.7.1986 and 13.7.1986 and 12.7.1993.Appellant is said to have commenced its business of manufacturing and selling centrifugal pumps also under the mark 'Field Marshall | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Allegedly,on the premise that the first respondent is the proprietor of the said mark by reason of long user and,thus,acquired a reputation in that behalf,a legal notice was issued upon it questioning its right to use the said mark in respect of centrifugal pumps by the appellant laying a claim that it had been using the said mark since 1963 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Respondent No.1 thereafter filed a suit in the Delhi High Court for grant of a decree of permanent injunction being Suit No.2408 of 1985 alleging infringement of the said mark and/or claiming right of passing off in respect thereof | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
An ex parte order of injunction was passed on 19.12.1985 against the defendant (appellant herein) to the following effect | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Notice for April 8,1986.Meanwhile,a temporary ex parte injunction is issued against the defendants restraining them from manufacturing or selling either themselves or through any dealer or representative diesel oil engines or parts thereof with the trade mark 'Field Marshal' and/or any other trade mark identical therewith and all goods falling in Cl.7 of the Trade and Merchandise Mark Rules | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The plaintiff shall comply with the requirements of Order 39 Rule 4 of the Code of Civil Procedure | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Indisputably,during the proceedings in the above suit,M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries by a deed of assignment assigned the said trade mark along with its goodwill in favour of the appellant | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
One of the stipulations contained therein reads as under : "That the party of the second part has satisfied the party of the first part of having used the mark FIELD MARSHAL in respect of Centrifugal Pumps and Valves since 1973 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Indisputably,First Respondent filed an application under Section 46,56 and 107 of the Act,marked as C.O.No.9 of 1986,contending that M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries having not used the trade mark in respect of Centrifugal Pumps for a period more than five years and one month,the mark should be taken off the register | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It claimed user of the said mark since 1963 and sought for rectification of the register by expunging the expression 'circulation and centrifugal pumps' from the specification of goods | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Indisputably,appellant filed an application in form TM 24 on 17.6.1986.The Assistant Registrar,Trade Marks,passed an order on 10.11.1986 certifying : "THAT the trade mark FIELD MARSHAL BRAND (word per se) is registered under No.228867 in part 'A' of the Register as of the date 13th | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
May,1965 in class 7 in respect of Flour Mills,circulating and centrifugal pumps; coupling for machines; pulleys included in Class 7,and valves (parts of machines) in the name of Pooran Chand Jain and Kailash Chand Jain,trading as Jain Industries,1166,Phatak | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Suraj Bhan,Belanganj Agra | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
THAT Pursuant to a request on form TM-23 dated 17th June,1986 and order thereon dated 24th October,1986 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Ganga Ram Anil Kumar (HUF),Sunil Kumar and Sumitra Rani,trading as Thukral Mechanical Works Railway Road,Sirhind (Punjab) are registered as subsequent proprietors of this mark as from 30th May,1986 by virtue of Agreement dated 30th May,1986.AND | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
THAT | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The registration of the aforesaid trade mark has been renewed from time to time and will remain in force for a period of a seven years from 13th | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
May,1986 and may be renewed at the expiration of that period and of each succeeding period of a seven years | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In the said C.O.No.9 of 1986 filed by the first respondent against M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries,despite service of notice,nobody appeared on behalf of the defendant.16.1.1987 was the date fixed in the said suit | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Appellant's counsel appeared on that date and,inter alia,contended that presently it was the registered owner of the trade mark which was sought to be cancelled | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In view of that statement,a submission was made on behalf of the first respondent that it may be permitted to withdraw the petition with liberty to file a fresh petition on the same cause of action | Argument | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The learned Judge directed recording of statements of the learned counsel in this behalf; pursuant whereto the same were recorded which reads as under : "C.O.9 of 1986 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Mr | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Singh has filed a reply in this petition bringing out that presently he is the registered owner of the trademark which is sought to be cancelled in this petition | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In view of this situation learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action after impleading M/s Thakural mechanical Works etc | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Let the statement of learned counsel for the petitioner be recorded | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Statement of Shri K.L.Aggarwal,counsel for petitioner without oath | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In view of the submissions of M/s Thakural Mechanical Works I may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Statement of Shri Hemant Singh,counsel for M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Thakural Mechanical Works without oath | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
I have no objection if the petitioner is permitted to withdraw this petition with permission to file a fresh petition on this very cause of action | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On the basis of the said statement,the following order was passed : "This petition has been filed by M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
PM Diesels Pvt.Ltd | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Against M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries and the Dy | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Registrar of Trade Marks under Section 46,56 and 107 of the Trade and Merchandise Marks Act,1958 for rectification of entry relating to the Registered Trade Mark No.228867 in Class 7.After | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
the notice was served upon the respondent 1,a reply has been filed by M/s Thakural Mechanical Works bringing out there in that they are now the registered proprietors of said | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Trade Mark No.228867.In | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
this view of the matter learned counsel for the petitioner has submitted that he may be permitted to withdraw this petition with permission to file a fresh petition on this very cause of action | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The request is not opposed on behalf of M/s Thakural Mechanical Works | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In these circumstances the request of the plaintiff is granted and petitioner is permitted to withdraw this petition and file a fresh petition on this very cause of action | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The petition is accordingly filed as withdrawn leaving the parties to bear their own costs | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A fresh application was filed by the first respondent | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The said M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries,however,was not impleaded as a party therein | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The cause of action therefor was stated to have arisen in the following circumstances : "That the cause of action for the present petition arose in favour of the petitioner and against the respondents in the month of January 1987 when the respondent informed this Hon'ble Court that they have been recorded as subsequent proprietors of the impugned registered trade mark No.228867 in Class 7 in C.O.No.9 of 1986,whereupon the petitioner withdrew the said earlier petition C.O.No.9 of 1986 with permission of the court to file the present petition,because of the changed circumstances | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The cause of action is continuous from day to day till the impugned registration is cancelled/rectified | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The injunction matter in Suit No.2408 of 1985 came up for hearing before a learned Single Judge of the High Court | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
By an order dated 19.1.1988,having regard to the provisions contained in the said Act,the learned Judge opined that appellant having become the registered proprietor of the said trade mark,no case for grant of injunction has been made out,the interim order of injunction passed on 19.12.1985 was vacated and the defendants were permitted to use their registered trade mark subject to the following conditions : "(a) Defendants will not use the logo/style of the word "Field Marshal" of which logo and style the plaintiff is the proprietor under the Copyright Act | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
b) Defendants shall mention the name of the defendant firm,Thukral Mechanical Works,Sirhind on each and every centrifugal pump manufactured by them and sold in the name of 'Field Marshal | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
c | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The defendants shall maintain proper accounts of the sale of centrifugal pumps under the trade mark "Field Marshal" and shall file them in Court as and when directed | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Correctness or otherwise of the said order has not been questioned | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The second rectification application filed by the first respondent,however,was transferred to the Intellectual Property Appellate Board | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The said application was dismissed | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A writ petition was filed there against by the first respondent | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A learned Single Judge of the Delhi High Court,however,refused to stay the operation of the order of the Board dated 27.10.2004.An appeal was preferred there against | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Division Bench of the High Court thereafter while disposing of both the writ petition and the Letters Patent Appeal allowed the writ petition and set aside the order of the Board and directed it to adjudicate the dispute on merits | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The said order of the Division Bench is under challenge in this appeal | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The core question which arises for our consideration is as to whether in the aforementioned facts and circumstances of the case,the application under S.46(1)(b) was maintainable | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Before adverting thereto,we may take notice of the relevant statutory provisions : Ss.46(1)(b),48(1),48(2) and 56 read as under: "Section 46--Removal from register and imposition of limitations on ground of non-use--(1) Subject to the provisions of section 47,a registered trade mark may be taken off the register in respect of any of the goods in respect of which it is registered on application made in the prescribed manner to a High Court or to the Registrar by any person aggrieved on the ground either-- (a | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
b) that up to a date one month before the date of the application,a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by any proprietor thereof for the time being: Provided that,except where the applicant has been permitted under sub-s.(3) of s.12 to register an identical or nearly resembling trade mark in respect of the goods in question or where the tribunal is of opinion that he might properly be permitted so to register such a trade mark,the tribunal may refuse an application u/cl.(a) or cl.(b) in relation to any goods,if it is shown that there has been,before the relevent date or during the relevant period,as the case may be,bona fide use of the trade mark by any proprietor thereof for the time being in relation to goods of the same description,being goods in respect of which the trade mark is registered | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Section 48--Registered users--(1) Subject to the provisions of section 49,a person other than the registered proprietor of a trade mark may be registered as the registered user thereof in respect of any or all of the goods in respect of which the trademark is registered otherwise than as a defensive trade mark; but the Central Government may,by rules made in this behalf,provide that no application for registration as such shall be enertained unless the agreement between the parties complies with the conditions laid down in the rules for preventing trafficking in trade marks | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The permitted use of a trade mark shall be deemed to be used by the proprietor thereof,and shall be deemed not to be used by a person other than the proprietor,for the purposes of s.46 or for any other purpose for which such use is material under this Act or any other law | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Section 56--Power to cancel or vary registration and to rectify the register--(1 | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
On application made in the prescribed manner to a High Court 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 | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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,or by any error of defect in any entry in the ' register,may apply in the prescribed manner to a High Court or to the Registrar,and the tribunal may make such order for making,expunging or varying the entry as it may think fit | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The tribunal may in any proceeding under this section decide any question that may be necessary or expedient to decide in connection with the rectification of the register | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The tribunal,of its own motion,may,after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard,make any order referred to in sub-s.(1) or sub-s.(2 | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Any order of the High Court 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 | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The power to rectify the register conferred by this section shall include the power to remove a trade mark registered in Part A of the register to Part B of the register | Statute | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Indisputably,the scope of the provisions for removal from Register in terms of S.46 and 56 of the Act stand on different footings | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Whereas S.46 had a limited application,S.56 of the Act is wider in nature | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Concededly,cl.(a) of sub-s.(1) of S.46 is not attracted in the case | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
For the purpose of appreciation of the rival contentions,we may notice the findings of the Board as also the High Court | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Board has taken the view that the period of five years and one month will begin to run from the date on which Thukral became the proprietor of the trademark,that is,30th May,1986 and,therefore,the rectification application could have been filed by the appellant only sometime in 1991.Opining that an application for rectification against the appellant within a period of seven and a half months from the date of assignment of the trade mark was not maintainable,the application was dismissed | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The High Court on the other hand opined: "It was not anybody's case before us that M/s Jain Industries | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
the registered proprietor of the trademark used it at all | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The trademark was used by the Appellant and Thukral,neither of whom were proprietors thereof,except that Thukral claims to have become its proprietor with effect from 30th May,1986.According to learned counsel for the Appellant,the use of the trademark by Thukral was not legally permissible use inasmuch as Thukral did not have the consent,tacit or otherwise of M/s | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries to use the trademark | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
If Thukral did,then it cannot be said that there was no bona fide use thereof by its proprietor | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
that is,M/s Jain Industries | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This appears to be the position at least till 30th May,1986.In | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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