ALIGARH LOCK HOUSE Vs. TILAK RAJ HORA

JUDGEMENT

(1.) THE appellant has filed the above appeal under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) against the order dated 19.9.2007 passed by the Registrar of Trade Marks, Chennai on the request filed by the first respondent on Form TM -24 dated 6.2.2007 in respect of registered trade mark No. 261178 in class 06.

(2.) THE appellant M/s. Aligarh Lock House, a partnership firm, is stated to be engaged in the business of locks and other allied goods. It is the case of the appellant that they through their predecessor adopted the trade mark SHEEL in the year 1960 and got the same registered under No. 261178 as of 9.12.1969 in class 06 and since 1960 up till now using the same continuously. It is claimed that the business carried on by the appellant is at a very extensive scale and the goods bearing the trade mark have been distributed in major parts of the country. Averment is made that the trade mark SHEEL was initially registered in the name of Mr. Tilak Raj Hora, trading as M/s. Aligarh Lock House and subsequently by a partnership deed dated 1.4.1977 Mr. Susheel Kumar Hora, elder son of Mr. Tilak Raj Hora was inducted as a partner in the firm and the request filed on Form TM -24 for recordal of changes was allowed by and consequently Mr. Tilak Raj Hora and Mr. Susheel Kumar Hora, trading as Aligarh Lock House, became the subsequent proprietors of the trade mark. As per deed of dissolution of partnership firm dated 31.3.2000, Mr. Tilak Raj retired from the partnership firm and Mr. Susheel Kumar Hora took over the entire business of the appellant firm along with all assets and liabilities including the said trade mark.

(3.) AGGRIEVED by the order of the second respondent to bring on record Mr. Tilak Raj Hora as subsequent proprietor of trade mark SHEEL, the appellant/opponent has preferred the instant appeal on the grounds, inter alia, that the impugned order passed by second respondent suffers from non -application of mind and the discretion exercised on irrelevant and extraneous considerations; that the second respondent did not give hearing to the appellant before allowing the request on Form TM -24 dated 6.2.2007 filed by first respondent; that the purported Memorandum of Family Business Settlement dated 4.6.1999 (MOU) is not a binding and enforceable document in law because it was never acted upon by the parties and as such is non -est especially when the appellant never assigned the said trade mark to the first respondent but rather it was the first respondent who by deed of dissolution dated 31.3.2000 relinquished all his rights in the said trade mark in favour of the appellant; that the second respondent acted malafidely as she did not consider at all the request on From TM -24 filed on 17.7.2006 by the appellant to bring on record the changes whereas Form TM -24 dated 6.2.2007 which was filed much later on false claims and the assertions by the first respondent is allowed; that the counsel for the first respondent herein and also applicant in application No. 1346695 before the second respondent is the same person; that the first respondent is guilty of suppression of facts and that the impugned order has caused wrongful gain to the first respondent and wrongful loss to the appellant. It is the prayer of the appellant that in the interest of justice, equity and good conscience, the instant appeal may be allowed.