SAFARI INTERNATIONAL Vs. SUBHASH GUPTA

JUDGEMENT

(1.) The petitioner has impugned the order of Intellectual Property Appellate Board dated 9th March, 2006 dismissing the application of petitioner for rectification of respondent No. 1 's trade 'mark "Safari" under Sections 46, 47(4) and 56 of the Trade and Merchandise Marks Act, 1958 on the ground that the registration of the trade mark "Safari" was obtained by respondent No. 1 without any bona fide intention and mark was obtained by playing fraud on the Registrar of Trade Marks as well as on the honest members of trade and business.

(2.) The respondent No. 1 had invented the word "Safari" and used trade mark for his tricycles, bicycles and baby cycles under this sole proprietorship concern, M/s. Shagun Udyog, since 1974. In 1979, he filed an application for the registration of the mark "Safari' in class 12 which was registered under No. 348920 in class 12 in July 1988 and the certificate was issued to respondent No. 1. During the pendency of the application for registration after it was filed in 1979, the respondent No. 1 had incorporated a private limited company "Safari Cycles Pvt. Ltd. with himself and his brother having equal shares in 1981. This company of the respondent No. 1 did not function till 1984 and in December, 1984 the brother of respondent No. 1 resigned from the Company and his shareholding was transferred in the name of the respondent No. 1 and his wife thereby respondent No. 1 held 70% of the shares and his wife held 30% of the shares.

(3.) The plea of the petitioner that the fraud had been committed by the respondent No. 1 has been rejected by the Intellectual Property Appellate Board holding that respondent No. 1 remained the managing force of the company and, therefore, without any intention to deceive anybody and without knowing the consequences of the technicalities he stated that he was the proprietor of the trade mark. As a proprietor of the firm, M/s. Shagun Udyog, he was the proprietor of the trade mark and he has the controlling and managing force of the company also where he held 70% of the shares and his wife held 30% of the shares and, therefore, he was the proprietor of the trade mark in all senses. By claiming that he is the proprietor of the trade mark though the proprietor in technical sense may be his company M/s. Safari Cycles Pvt. Ltd. where he held 70% shares and his wife 30% shares the respondent No. 1, according to respondent No. 3, did not derive any advantage which he could have not have by disclosing that the assignment of the trade mark was in the name of his company.