DINESH CHANDRA VAGHANI Vs. UNION OF INDIA

JUDGEMENT

(1.) The challenge in this petition is to an order dated 1st May 2009 passed by the Intellectual Property Appellate Board ('IPAB') allowing the application MP No. 57 of 2007 filed by the Respondent No. 3 Amit Arora for a direction that the statement of case filed by the Petitioner M/s. Milton Plastics Ltd. ('MPL') does not form part of the case file of the impugned rectification application filed by MPL for removal of the trade mark Milton registered in favour of Respondent No. 3 under No. 1198540 in class 11 from the Register of Trade Marks under Section 57 of the Trade Marks Act, 1999 ('TM Act'). By the said impugned order the IPAB also dismissed the Petitioner's application MP No. 57 of 2008 on the ground that since the application filed by Respondent No. 3 i.e. MP No. 57 of 2007 had been allowed the Petitioner's application did not survive. Consequently, by the impugned order the IPAB also dismissed the Petitioner's Original Rectification Application ORA/143/06/TM/DEL as not maintainable.

(2.) The present petition has been filed by six Petitioners i.e. Dinesh Chandra Vaghani, Kanaiyalal I. Vaghani, Nilesh I. Vaghani, Chirnajiv I. Vaghani, Madhup B. Vaghani and M/s. Milton Plastics Ltd. arrayed as Petitioners 1 to 6 respectively. It is stated that Petitioners 1 to 5 had initially set up a partnership firm under the name of M/s. Milton Plastics ('MP') in 1997 and had been carrying on the business of manufacturing and marketing domestic containers, flask, water jugs, water bottles, tiffins, casseroles, apparatus for filtration or purifying water, electric food warmers, toasters, mixers, irons, hair dryers, sandwich makers, oven toasters, grills, juicers, LPG stoves etc. under the trade mark and trade name Milton. It is stated that a registration certificate dated 13th August 1981 was issued under the erstwhile Trade & Merchandise Marks Act, 1958 in respect of the mark Milton in favour of Petitioners 1 to 5 'trading as M/s. Milton Plastics.' It is stated that on 22nd January 1998 a Memorandum of Understanding ('MoU') was signed between Petitioners 1 to 5 as partners of MP on one hand and Petitioners 1 to 5 as individuals on the other whereby the proprietary right and the ownership of the trade mark Milton and the MP logo was withdrawn from the partnership firm MP unto Petitioners 1 to 5 in their individual capacity so as to exclude any other persons who may join the partnership later from claiming any proprietary right in the said mark and logo. By the same MoU a licence was granted to MP to continue using the trade mark Milton and MP logo in relation to its goods and business.

(3.) It is stated that on 1st May 1992 the partnership firm MP was converted into a limited company, MPL. The certificate of incorporation dated 1st May 1992 of MPL has been placed on record. It is stated that MPL thus became a successor-in-interest of the erstwhile firm MP.