MADAN MOHAN LAL GARG Vs. BRIJMOHAN LAL GARG

JUDGEMENT

(1.) Madan Mohan Lal Garg-appellant, Brij Mohan Lal Garg-respondent with their father Shanker Lal Garg were carrying on a partnership business under the name and style of "Meerut Engineering Works". This firm was manufacturing Sugar Cane Crushers, Centrifugal Sugar Machines and Persian Wheels etc. On 9th June, 1960 an application was made to the Assistant Registrar of Trade-Marks, New Delhi for registration of the Trade Mark 'Shanker'. This application was made in the names of all the partners. The application was contained in the Trade-Marks Journal No. 285, dated the 16th April, 1961 under Section 20 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). During the pendency of this application this partnership firm was dissolved on 1-11-1961 and a deed of dissolution was also executed. The original deed was given to Brij Mohan Lal Garg-respondent and a copy of the same was kept by Madan Mohan Lal Garg-appellant. On 15-11-1961, the appellant wrote to his Solicitors at Calcutta who were dealing with the application for registration of the trade-mark, informing them about the dissolution of the firm and asking them to stop further proceedings. The Solicitors informed the appellant that they were informing the Registrar of Trade-Marks accordingly. However by letter dated 8th January, 1962 the Solicitors made an application on form TM-16 to the Registrar of Trade-Marks, New Delhi to amend the pending application to stand in the name of Brij Mohan Lal Garg-respondent, alleging that after the dissolution of the said partnership firm this respondent received the goodwill of the dissolved firm as well as the trade-mark "Shanker". The Solicitors were informed that the amendment application will be considered on their filing the necessary documentary evidence such as certified copy of the dissolution deed by which the respondent had become the sole proprietor of the mark in question. They were further informed that the amendment application will proceed to registration only after the respondent was entered as proprietor and after the same was 'notified' in the Trade-Marks Journal. On 14th February, 1962 the appellant wrote to the Registrar of Trade-Marks, Bombay informing him about the dissolution of the said partnership firm and stating that he would also be entitled to use the mark "Shanker" for his personal business. It was stated by him "as the circumstances have changed and none has got exclusive right to use the said mark, the above- mentioned application is not legally maintainable and the mark "Shanker" should not be registered as it was applied or with any amendment." It was thus requested that the pending application tor registration of the trademark be rejected and he be informed. By letter dated 13th March, 1962 the appellant was informed in reply to his aforesaid letter that "if a person objects to the registration of the trade-mark, the proper course for him to adopt is to oppose the application in the prescribed manner. So far as this application is concerned the period for filing the opposition has expired." On 2nd April, 1962 the appellant wrote to the Registrar of Trade-Marks, Bombay that on inspection of the file relating to the application for registration of the trade-mark it had been found that the Solicitors had asked for amendment of the application by substituting the name of the respondent alone and thus removing the name of the appellant and his father without authority and against his definite instructions. He stated that the amendment application could not be acted upon and was opposed by him. In these circumstances it was requested "that no action on the said unauthorised TM-16' dated 9-1-1962 be taken without notice to him and without a hearing in the matter and oblige." By another letter of the same date the appellant informed the Assistant Registrar, Trade-Marks, New Delhi enclosing a copy of his letter to Registrar of Trade-Marks Bombay and requesting him "to see that the mark is registered exactly as advertised in the names of the proprietors".

(2.) Brij Mohan Lal Garg-respondent by his letter (Wed 27th June, 1962 sent a true copy of the deed of dissolution of the said partnership firm to the Assistant Registrar Trade Marks New Delhi. The Registrar of Trade-Marks by his letter dated 21-7-1962 informed the respondent that his amendment application had been allowed and the original application stood amended accordingly which was being proceeded further. In the meantime the Registrar of Trade-Murks had asked the appellant by his letter dated 11-6-1962 to send the deed of dissolution. The appellant by his letter dated 6th August 1962 informed him that the original deed of dissolution was with Brij Mohan Lal Garg-respondent who was requiring the registration of the mark in his name. He also requested that "application be treated as abandoned so that the parties may apply for registration of their trademarks with other distinctive added features." The appellant was, however, informed by letter dated 25th August, 1962 that the application in question stood amended in the name of Brij Mohan Lal Garg-respondent as per deed of dissolution and that the application so amended was due for registration and was likely to be registered shortly. By a letter dated 5th September, 1962 the appellant through his attorneys informed the Registrar of Trade- Marks that the amendment asked for by the respondent could not be considered without considering objections raised by the appellant and that he was entitled to an opportunity of being heard before any decision was taken. Registrar of Trade-Marks informed the appellant's attorneys by letter dated 15th September 1962 that the request of the respondent for amendment had been allowed after careful consideration and the "question of granting hearing to decide the request on TM-16 does not arise." In the meantime the amendment was notified in the Trade-Marks Journal dated September 1, 1962 under the heading "applications amended after advertisement."

(3.) The appellant on 18th September 1962 put in form TM-44 requesting for condonation of delay for filing the Opposition as the appellant intended to file an Opposition within a month, followed by a notice of Opposition dated 16-10-1962. He was informed by a letter dated 1st November, 1962 that the Opposition was not filed within time and so was refused. He was further informed that he could apply for refund of fees in respect of notice of Opposition. The appellant in this appeal under Section 109 of the Act challenges orders dated 25th of August, 1962 and 1-11-1962 of the Trade-Marks Registry.