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the meantime,as a result of the ex parte ad interim injunction granted on 19th December 1985 by this Court in Suit No.2408 of 1985,there was no question of Thukral using the trademark Field Marshal till the injunction was vacated on 19th January,1988 | Facts | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Act was enacted to provide for the registration and better protection of trademarks and for the prevention of the use of fraudulent marks of merchandise | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Registration of a trade mark remains valid for seven years | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Renewal applications are required to be filed on the expiry of seven years | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries got itself registered and obtained periodical renewal thereof as is required under the Act | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
First Respondent withdrew the application against M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The prayer in the application was to take off the registered trade mark from the register in respect of centrifugal pumps (goods) so far as the registration made in favour of the appellant is concerned | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It is in the aforementioned situation,we are called upon to determine the meaning of the words 'for the time being' occurring in S.46(1)(b) of the Act | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Two interpretations thereto which are possible are: (1) the said words would denote non-use of the trade mark in relation to the goods by the appellant for a period of five years or longer; and (2) The mark had not been used for a period of five years or longer either by the present proprietor thereof or his predecessor | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We may,however,also notice that another construction of the said provision has been put forth by Mr | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sunderam,learned senior counsel appearing on behalf of the appellant,that the word 'proprietor' would not mean a registered proprietor but also a person who has become 'proprietor' by long use thereof | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The words 'for the time being' would mean differently in different situations | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It may mean 'the moment or existing position' as was held by this Court in the case of Jivendra Nath Kaul v | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Collector/District Magistrate and Anr.[(1992 | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
3 SCC 576 1992 Indlaw SC 1107] or in the context of cl.(22) of Art.366 of the Constitution as has been held in H.H.Maharajadhiraja | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior,H.H.Maharajadhiraja | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Maharana Shri Bhagwat Singhji Bahadur of Udaipur v | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Union of India and Anr.,AIR 1971 | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
SC 530 1970 Indlaw SC 300 para 88 to mean: "By the use of the expression "for the time being" in Cl.(22) of Art.366 | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
the President is not invested with authority to accord a temporary recognition to a Ruler nor with authority to recognize or not to recognize a Ruler arbitrarily : the expression "for them time being" predicts that there shall be a Ruler of the Indian State,that if the first recognized Ruler dies,or ceases to be a Ruler,a successor shall be appointed,and that there shall not be more Rulers than one at a given time | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The terms also may bring within its umbrage the entire period of five years or more irrespective of the fact as to whether the registered proprietor was one or more than one as has been held by the High Court | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
There cannot be any doubt or dispute that the registration of a trade mark confers a very valuable right | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The person in whose name the trade mark has been registered may take action against any person for passing off the goods as that of the registered owner | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It confers an exclusive right of use of the trade mark in relation to the goods in which the trade mark is registered | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The same is an assignable right in terms of S.36 of the Act,whereas an unregistered trade mark is not | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Non | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
user of the said mark,therefore,entails the consequences laid down under cl.(b) of Sub-s.(1) of S.46 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
However,such an application can be filed only by a person aggrieved | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
When the applicant before the Board establishes the fact in regard to non-user of the mark for a period of more than five years on the part of the registered owner,the latter may show that his case falls within the purview of sub-s.(3) of S.46 | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The question which,therefore,arises is as to who can prove that he had the bona fide intention to use the trade mark on the date of application for registration | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Indisputably,it would be the registered proprietor | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
S.46 is a penal provision | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It provides for civil or evil consequences | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It takes away the valuable right of a registered proprietor | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It,therefore,can be taken away only when the conditions laid down therefor are satisfied | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
While we say so,we are not oblivious of the fact that trafficking in trade mark is to be discouraged | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A registered proprietor of a trade mark should not be permitted to circumvent the law of user of the trade mark for a long time by assigning the same from time to time | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
But then such a case has to be made out | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Allegation of trafficking is a serious one | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It must be proved in presence of the person against whom such allegations are made | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
At the time of grant of original registration,advertisements are issued and objections are called for | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Renewal of registration,in a sense,also is not automatic | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A person who had been using the said trade mark as a proprietor thereof by user is supposed to keep itself abreast with such applications filed by another either for registration of the trade mark or renewal thereof | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The non-user for a long time would disentitle a registered proprietor from renewal of the registration | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It must not,however,be forgotten that S.46(1)(b) provides for a special remedy | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
As a person obtains a right on and from the date of registration and/or renewal thereof,he can ordinarily be deprived of his right unless it is shown that the assignment thereof by his holder was not a bona fide one or had been made by way of camouflage | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
If the assignee has obtained assignment for bona fide use,he may not be fastened with any liability owing to non-user on the part of his predecessor | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In other words,the mistake of the predecessor should not be visited with non-use of the present registered owner | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It must,however,be observed that whether a use is for bona fide purpose would essentially be a question of fact | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Whether S.46(1)(b) read with S.48 of the Act would bring within its purview,not only a registered proprietor but also the proprietor who had otherwise acquired a right would depend upon the facts and circumstances of each case | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In Kabushiki Kaisha Toshiba v | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Tosiba Appliances Co | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Ors.[(2008) 8 SCALE 354 2008 Indlaw SC 1395],this Court held : "We do not find any force in the aforementioned submission | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Cls.(a) and (b) operate in different fileds | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sub-s.(3) covers a case falling within cl.(b) and not the cl.(a) thereof | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Had the intention of the Parliament been that sub-s.(3) covers cases falling under cl.(b) and clause (a),having regard to the similarity of the expressions used,there was no reason as to why it could not be stated so explicitly | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was furthermore opined : "There may be a case where owing to certain special circumstances,a continuous use is not possible | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The trade mark for which registration is obtained is used intermittently | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Such non-user for a temporary period may be due to any exigency including a bar under a statute,or a policy decision of the Government or any action taken against the registrant | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It was observed that in cases of intermittent use also,cl.(b) shall apply | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
In Kabushiki Kaisha Toshiba,this Court relied upon Hardie Trading Ltd.& Anr | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
V.Addisons Paint & Chemicals Ltd.[(2003) 11 SCC 92 2003 Indlaw SC 756]: "In our opinion,the phrase "person aggrieved" for the purposes of removal on the ground of non-use under S.46 has a different connotation from the phrase used in s.56 for canceling or expunging or varying an entry wrongly made or remaining in the Register | Precedent | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The submission of Mr | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sudhir Chandra | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
that the appellant was an infringer both of the right of M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries as also the first respondent and,thus,its use was not bona fide in a case of this nature cannot be accepted | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
If appellant infringed the right of M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries,it was for it to take action there for | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It did not | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
First respondent itself accepts that at least immediately prior to the institution of the suit,appellant had been using the same | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We are not concerned herein as to since when it had been doing so | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It obtained an or of injunction | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The order of injunction was vacated | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
For one reason or the other,the said order attained finality | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Prima facie,therefore,appellant has been held to be the registered owner of the trade mark | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It is one thing to say that for the purpose of frustrating an application for rectification,the appellant had colluded with its predecessor for the purpose of trafficking by entering into the deed of assignment which is otherwise illegal and bad in law | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
but it is another thing to say that the appellant could be proceeded against alone for non-user of the registered trade mark for a period of more than five years | 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 making out such a case,both the original registrants as also the assignee were required to be impleaded as parties | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We may,at this stage,notice that in Law of Trade Marks by Mr | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
K.C.Kailasam,while commenting on S.47 of the Trade Marks Act,1999 to which our attention has been drawn by Mr | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Sudhir Chandra,it is stated | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Notes on clauses | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This clause corresponds to s.46 of the existing Act and provides for removal of a trade mark from the register on the ground of non-use | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
A trade mark which is not used within five years of its registration,becomes liable for removal either completely or in respect of those goods or services for which the mark has not been used | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Under S.46(1),it is proposed to clarify that the five years period will start from the date on which the trade mark is actually entered on the register | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This amendment is intended to remove any ambiguity,as for all other purposes,the date of registration will be the date on which the application was filed vide cl.23(2).Proviso to sub-cl.(1) also provides that the tribunal may refuse removal of the mark if it is shown that any proprietor had in fact made bona fide use of the trademark for goods or services of the same description or associated goods or services | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It is also proposed to increase the period from 1 to 3 months in cl.47(1)(a) and (b) in which use of the trade mark,prior to the date of filing of the application for removal of the trade mark,shall be disregarded | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
This is intended to prevent the registered proprietor to by pass the Act by such token use after he comes to know that an application for removal is about to be filed.?Sub-cl.(3) protects a mark from being removed from the register on ground of non-use if such non-use is shown to have been due to special circumstances in the trade | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The clause is proposed to be modified to clarify that special circumstances in the trade will include restrictions imposed by any law or regulation on the use of trade mark in India | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Consequential amendments have been made to cover services.(Cl.47 of the Bill | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The Court while construing a statute takes into consideration the parliamentary intent in amending the provisions thereof | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It seeks to enhance the period of moratorium of use of the registered trade mark from one month to three months so as to prevent speculative assignment | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Thus,a case of speculative assignment is specifically required to be made out | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Such an application may be maintainable in terms of S.56 of the Act but strictly not in terms of S.46(1)(b) thereof and that too in the absence of the original registered proprietor | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
We are not satisfied with the explanation offered by the first respondent that it gave up the case of non-use of the registered trade mark against M/s Jain Industries on the basis of statement made by the learned counsel for the appellant; firstly because consent does not confer jurisdiction; secondly,because want and/or lack of jurisdiction on the part of the Tribunal cannot be waived as if any order is passed without jurisdiction,the same would be a nullity; and thirdly because the cause of action,even according to the first respondent in his application before the High Court,was different | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
The counsel appearing on behalf of the appellant did not state that it had waived its right so far as non-impleadment of M/s | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
Jain Industries was concerned | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
It only consented for grant of liberty in favour of the first respondent for filing of an application for the self-same cause of action | Ratio of the decision | Analyze the sentence and predict in which semantic role does this come under in Indian legal context |
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