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Akhil Sibal,learned counsel for the appellant argued that an application for rectification,whether under Section 46 or Section 56 of The 1958 Act,can only be preferred by a 'person aggrieved'; the applicant must not only be a person aggrieved on the date of the application but must continue to remain a person aggrieved until such time as the rectification application is finally decided | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
He contended that the first respondent is not shown to have ever traded or intended to trade in any goods covered by the appellant's registrations under Classes 7 and 16 and as such the first respondent is not a 'person aggrieved' with regard to the appellant's registrations under these two classes | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
As regards Class 9 he would submit that in view of the affidavit filed by the first respondent on July 14,2004 in the Court of Additional District Judge,Delhi the first respondent ceases to be an aggrieved person on the date of consideration of the rectification application | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Learned counsel heavily relied upon two decisions of this Court: (1) Hardie Trading Ltd.& Anr.v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Addisons Paint & Chemicals Ltd.(2003) 11 SCC 92) 2003 Indlaw SC 756 and (2) Kabushiki Kaisha Toshiba v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Tosiba Appliances Company & Ors.(2008) 10 SCC 766) 2008 Indlaw SC 1395 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Assailing the finding of the IPAB as regards non-use by the appellant during the relevant period,learned counsel for the appellant argued that the said finding was erroneous on legal as well as factual premise | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
He contended that the IPAB erred in holding that software was a 'service' and the subject registrations were in relation to goods without considering the wide definition of 'goods' provided under Section 2(g) of The 1958 Act | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Akhil Sibal argued that the IPAB committed grave error in relying upon the provisions of the 1999 Act and the Trade Marks Rules,2002 when these provisions were not applicable as the applications were filed under The 1958 Act | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
According to him,the IPAB sought to rely upon 'computer programming' which is a 'service' enumerated in Class 42,without considering the distinction between a 'computer programme' and 'computer programming' and without noticing the entry 'computer' under Class 9 which falls within 'goods'.Learned counsel would submit that in examining the question of non-use under Section 46(1)(b),the IPAB failed to consider that the requisite use must be 'in relation to goods' under registration,which is extensively defined under Section 2(2)(b) of The 1958 Act | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Akhil Sibal,learned counsel also argued that the IPAB failed to have regard to the proviso to Section 46(1),in terms of which it is open to the registered proprietor to rely upon use of the registered trade mark during the relevant period in relation to 'goods of the same description',in order to resist an application for rectification | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
He contended that the IPAB failed to apply proper legal tests for determining 'goods of the same description' and had that been done it would be evident that 'computer software' amounts to 'goods of the same description' as 'computer hardware'.In this regard,he relied upon M/s | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Eagle Potteries | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Private Ltd.v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
M/s | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Eagle Flask Industries Pvt | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Ltd.(AIR 1993 Bombay 185); 1992 Indlaw MUM 6327 Lever Brothers,Port Sunlight Ld.v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Sunniwite Products Ld.(1949) 66 RPC 84 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
The Ritz Hotel v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Charles of the Ritz (1989 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
RPC 333) and Australian Wine Importers' Trade Mark | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
6 RPC 311 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Learned counsel for the appellant also submitted that in any view of the matter,the IPAB erred in exercising its discretion under Section 46 of The 1958 Act without taking into consideration the aspect of public interest | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
He argued that the IPAB ought to have considered whether use of mark 'Infosys' by the first respondent on computer hardware would create confusion in the mind of the consumers that they might be led to believe that the said hardware is manufactured by the appellant | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Learned counsel,thus,submitted that the impugned order is unsustainable and liable to be set aside | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
On the other hand,an objection is raised in the written submissions on behalf of the first respondent and reference was made in support of the objection to seven Judge Bench decision of this Court in L.Chandrakumar v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Union of India & Ors.(1997) 3 SCC 261) 1997 Indlaw SC 2816 that challenge to the order of IPAB directly in the appeal before this Court under Article 136 of the Constitution is barred | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In reply to the arguments of learned counsel for the appellant,Mr | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Vaibhav Gaggar,learned counsel for the first respondent strenuously urged that the plea of 'aggrieved person' is a new plea and raised substantially for the first time before this Court | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
He argued that the appellant has not taken the plea of the first respondent not being a 'person aggrieved' with respect to filing of the applications for rectification before the IPAB; merely urging the plea that the first respondent has no locus standi in the written submissions before the IPAB is not sufficient | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Learned counsel would submit that the appellant has,for the first time,argued before this Court that the first respondent is not a person aggrieved and/or not capable of maintaining the rectification proceedings with respect to each and every good for which the appellant has been registered since the first respondent has not been registered for all the goods | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Vaibhav Gaggar rather asserted that the first respondent is a person aggrieved in view of the fact that various suits for infringement have been filed by the appellant against the first respondent and on the date of the applications for rectification/removal of the subject registrations from the register,the suits were pending | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
With reference to the affidavit dated July 14,2004 filed by the first respondent before the Court of Additional District Judge,he submitted that the said affidavit has no relevance in consideration as to whether the first respondent is an aggrieved person as Section 46 (1) of The 1958 Act relates only to the period upto the date of the filing of the rectification application and the rights of the parties crystallized at that stage itself | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In this regard,he relied upon a decision of the Madras High Court in Agha Hyder Hussain & Anr.v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Omar Khayyam Wineries (Pvt | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Ltd.& Anr.(AIR 1977 Mad 166 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
1976 Indlaw MAD 380 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
He also placed reliance upon some more decisions viz; Ritz Hotel Ltd.(1989 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
RPC 333),Philosophy Di Alberta Ferretti (2003 R.P.C.15 | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Keystone Knitting Mills Trade Mark(1929 (1) Ch | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
D.92) and Motor Terms Company Pty | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Limited.v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Liberty Insurance Ltd.(1967 116 C.L.R.177).Learned counsel for the first respondent further submitted that the affidavit dated July 14,2004 was not placed by the appellant before the IPAB nor any reference of the said affidavit has been made in the written submissions before the IPAB and the appellant also did not make any effort to amend the pleadings that the first respondent was not an aggrieved person | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
It was contended by Mr | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Vaibhav Gaggar that even otherwise in view of the fraud perpetrated by the appellant qua the registrations in question,the issue as to whether the first respondent had a dispute with the trade mark or not pales into insignificance as the primary duty of the court is to maintain the 'purity of the register'.He argued that in a case such as the present one since the allegations against the appellant relate to trafficking,squatting and non-user,the scope of 'person aggrieved' has to be enlarged | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Learned counsel submitted that the fact that the appellant continues to allege and that stance has not changed in the pleadings in SLP as well that the first respondent is an infringer,pilfriger,defrauder,someone who wants to ride on the goodwill of the appellant or someone who wants to mislead the public at large,there is no question of the first respondent ceasing to be a person aggrieved at any stage | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Vaibhav Gaggar,learned counsel for the first respondent contended that the appellant is registered as a 'manufacturer and trader' under Classes 7,9 and 16 even though,it is a company engaged in software only | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Moreover,there is nothing on record to indicate linkage with the manufacturing or marketing of the goods for which the appellant is holding registration of subject trade marks | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
He vehemently contended that goods in Classes 7,9 and 16 for which the appellant obtained registration were never used in the manner contemplated by The 1958 Act for almost 30 years and that would show the mala fide intention of the appellant in having the same registered for the purpose of squatting and trafficking | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Learned counsel for the first respondent further argued that 'Infosys' is not an invented or a coined word; the said word is an abbreviation and combination of the words 'information system'; the word 'Infosys' has been used by various companies abroad as well as within India prior to incorporation of the appellant itself and hence cannot be called an invented word | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In this regard,he relied upon a decision of the Madras High Court in Nestle's Products (India | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Ltd.v | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
P.Thankaraja | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Anr.(AIR 1978 Mad 336).He submitted that appellant is primarily in service industry which is unregistrable under The 1958 Act and since the appellant is not trading in the goods in respect of which it is registered,it cannot be said that the mark of the appellant is distinctive of its goods | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In any case,learned counsel would submit that the expression 'Infosys' is not descriptive expression | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Insofar as discretion exercised by IPAB in ordering removal of the appellant's registrations from the register under Section 46(1)(b) of The 1958 Act is concerned,learned counsel for the first respondent submitted that this Court should not overturn the discretion so exercised by the IPAB keeping in view the dishonest and fraudulent conduct of the appellant | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Lastly,he submitted that although no cross objections or cross appeal has been filed,the first respondent has some grievance with regard to the order of the IPAB in not considering the case set up in the rectification/removal applications particularly with regard to Section 56 of The 1958 Act | Argument | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Having regard to the order that we intend to make,we are not persuaded to accept the objection raised on behalf of the first respondent that present appeal preferred directly before this Court from the impugned order passed by the IPAB is not maintainable and must be dismissed as such | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Pertinently,the notice was issued in the petitions for special leave to appeal to the respondents on November 1,2004.In response to the said notice the first respondent filed counter affidavit before this Court on March 11,2005 wherein no specific objection about invocation of jurisdiction of this Court directly has been taken | Facts | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In the counter affidavit a very vague objection in the following terms was raised: "That the present petition apart from being false and misconceived lacks the necessary jurisdiction,hence deserves outright rejection | Facts | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
We are afraid,this is hardly an objection about maintainability | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Apart from it,on September 12,2005 after hearing both parties,special leave was granted by this Court | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In the backdrop of these peculiar facts,in our view,it is not appropriate to relegate the 17 appellant at this distance of time to challenge the impugned order passed by the IPAB in writ petition before the High Court | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
The objection about maintainability of the appeals is,accordingly,overruled | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
The moot question which has been debated before us is whether or not,the first respondent is an aggrieved person | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
That the first respondent filed composite applications under Sections 46 and 56 of The 1958 Act for rectification/removal of the trade mark 'Infosys' registered in Classes 7,9 and 16 is not in dispute | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Sections 46 and 56 read as follows : "S.46.Removal from register and imposition of limitations on ground of non-use.--(1) Subject to the provisions of section | Statute | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
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) that the trade mark was registered without any bona fide intention on the part of the applicant for registration that it should be used in relation to those goods by him or,in a case to which the provisions of section 45 apply,by the company concerned,and that there has,in fact,been no bona fide use of the trade mark in relation to those goods by any proprietor thereof for the time being up to a date one month before the date of the application; or (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 18 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-section (3) of section 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 under clause (a) or clause (b) in relation to any goods,if it is shown that there has been,before the relevant 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 (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
2) Where in relation to any goods in respect of which a trade mark is registered: (a) the circumstances referred to in clause (1) of sub-section (1) are shown to exist so far as regards non-use of the trade mark in relation to goods to be sold,or otherwise traded in,in a particular place in India (otherwise than for export from India),or in relation to goods to be exported to a particular market outside India; and (b) a person has been permitted under sub-section (3) of section 12 to register an identical or nearly resembling trade mark in respect of those goods under a registration extending to use in relation to goods to be so sold,or otherwise traded in,or in relation to goods to be so exported,or the tribunal is of opinion that he might properly be permitted so to register such a trade mark,on application by that person in the prescribed manner to a High Court or to the Registrar,the tribunal may impose on the registration of the first-mentioned trade mark such limitations as it thinks proper for securing that that registration shall cease to extend to such use.19 (3 | Statute | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
An applicant shall not be entitled to rely for the purpose of clause (b) of sub-section (1) or for the purposes of sub-section (2) on any non-use of a trade mark which is shown to have been due to special circumstances in the trade and not to any intention to abandon or not to use the trade mark in relation to the goods to which the application relates | Statute | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
S.56.Power to cancel or vary registration and to rectify the register.(1 | Statute | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) 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 (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) 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 or 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 (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) 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 (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) 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-section (1) or sub-section (2 | Statute | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) 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 (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) 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 (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
The position that emerges from the above provisions is this | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Whether the application is under Section 46 or under Section 56 or a composite application under both Sections,it is a pre-requisite that the applicant must be a person aggrieved | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Section 46(1) of The 1958 Act enables any person aggrieved to apply for removal of registered trade mark from the register on the ground of non use as stated in Clause (a) and/or Clause (b).To be an aggrieved person under Section 46,he must be one whose interest is affected in some possible way; it must not be a fanciful suggestion of grievance | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
A likelihood of some injury or damage to the applicant by such trade mark remaining on the register may meet the test of locus standi | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In Kerly's Law of Trade Marks and Trade Names (11th edition) at page 166,the legal position with regard to 'person aggrieved' has been summarized thus The persons who are aggrieved are all persons who are in some way or the other substantially interested in having the mark removed where it is a question of removal from the register; including all persons who would be substantially damaged if the mark remained,and all trade rivals over whom an advantage was gained by a trader who was getting the benefit of a registered trade mark to which he was not entitled | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
We accept the above statement of law | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Insofar as Section 56 is concerned,it provides for varying situations in which the person aggrieved may apply for rectification of the registered trade mark from the register | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Although both Sections,namely,Sections 46 and 56 require 'person aggrieved' to apply for removal of the registered trade mark from the register or rectification of a trade mark in the register,the expression 'person aggrieved' for the purposes of these two Sections has different connotations | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
The interpretation of the expression 'person aggrieved' occurring in Sections 46 and 56 has come up for consideration before this Court on more than one occasion | Ratio of the decision | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In Hardie Trading Ltd 2003 Indlaw SC 756.(2003) 11 SCC 92),this Court stated as follows: " The phrase "person aggrieved" is a common enough statutory precondition for a valid complaint or appeal | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
The phrase has been variously construed depending on the context in which it occurs | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Three sections viz | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Sections 46,56 and 69 of the Act contain the phrase | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Section 46 deals with the removal of a registered trade mark from the Register on the ground of non-use | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
This section presupposes that the registration which was validly made is liable to be taken off by subsequent non-user | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Section 56 on the other hand deals with situations where the initial registration should not have been or was incorrectly made | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
The situations covered by this section include: (a) the contravention or failure to observe a condition for registration; (b) the absence of an entry; (c) an entry made without sufficient cause; (d) a wrong entry; and (e) any error or defect in the entry | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Such type of actions are commenced for the "purity of the Register" which it is in public interest to maintain | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Applications under Sections 46 and 56 may be made to the Registrar who is competent to grant the relief."Persons aggrieved" may also apply for cancellation or varying an entry in the Register relating to a certification trade mark to the Central Government in certain circumstances | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
Since we are not concerned with a certification trade mark,the process for registration of which is entirely different,we may exclude the interpretation of the phrase "person aggrieved" occurring in Section 69 from consideration for the purposes of this judgment | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In our opinion the phrase "person aggrieved" for the purposes of removal on the ground of non-use under Section 46 has a different connotation from the phrase used in Section 56 for cancelling or expunging or varying an entry wrongly made or remaining in the Register | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
In the latter case the locus standi would be ascertained liberally,since it would not only be against the interest of other persons carrying on the same trade but also in the interest of the public to have such wrongful entry removed | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
It was in this sense that the House of Lords defined "person aggrieved" in the matter of Powell's Trade Mark: "...although they were no doubt inserted to prevent officious interference by those who had no interest at all in the register being correct,and to exclude a mere common informer,it is undoubtedly of public interest that they should not be unduly limited,inasmuch as it is a public mischief that there should remain upon the register a mark which ought not to be there,and by which many persons may be affected,who,nevertheless,would not be willing to enter upon the risk and expense of litigation | Precedent | Analyze the sentence and predict in which semantic role (Arguments, Precedent, Statutes, Facts, Ratio Decidendi, Ruling of Lower Court, Ruling of Present Court) does this come under in Indian legal context |
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