BAWA JAGMOHAN SINGH Vs. REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) Partnership firm M/s. Bawa Masala Company comprising of petitioner No. 1, respondents 3 to 5 and their father Bawa Sardar Singh as partners was proprietor of certain trade marks registered in their names. Bawa Sardar Singh died in 1993. Form TM-24 was filed for bringing on record the names of petitioner No. 1 and respondents 3 to 5 as registered proprietors of the trade mark. That application remained pending. In the meantime, pursuant to a settlement between petitioner No. 1 on the one hand and respondents 3 to 5 on the other, a MOU was executed by them on 17.8.2000 in accordance with which petitioner No. 1 retired from the partnership concern M/s. Bawa Masala Co. and he was allowed to carry on business of Bawa Masala Co. Pvt. Ltd. Both the partnership firm and the company were using the registered trade marks. Regarding user of trade mark, MOU provided that both the parties will continue to use the same trade mark for their business but the territories were distributed and allotted to them. Respondents 3 to 5 in June 2001 filed a Civil Suit at Tinsukhiya, Assam for grant of relief of injunction against the petitioner No. 1 for restraining him from selling his goods under the registered trade mark in question within the State of Assam. Ad-interim injunction prayed for was declined by the District Judge and the order was confirmed by the Assam High Court. The suit is still pending. Respondents 3 to 5 thereafter in 2001 submitted an application under Section 44 of Trade and Merchandise Marks Act (hereinafter referred to as the Act) read with Rule 71 of the Trade Mark and Merchandise Marks Rules (hereinafter referred to as the Rules) framed thereunder before the Registrar of Trade Marks for registering the trade mark in their name upon devolution of title on them under deed of dissolution. The Registrar of Trade Marks without issuing notice to petitioner No. 1 and calling upon him to show cause has granted their prayer. The name of petitioner No. 1 as such stands removed from the register of trade marks and respondents 3 to 5 now where the proprietors of the trade marks.

(2.) The petitioners were aggrieved and have filed this appeal under Section 109(2) of the Act. Along with the petition they submitted an application for stay of the operation of the order dated 13.8.2001 during the pendency of the appeal.

(3.) Respondents 3 to 5 contested the appeal as well as the application. They have filed reply to the application which is under consideration and have raised various objections to the grant of stay.