CLASSIC EQUIPMENTS P LTD Vs. JOHNSON ENTERPRISES

JUDGEMENT

(1.) The present petition has been filed for issuance of a writ of certiorari or any other appropriate writ, order or direction quashing/setting aside the order dated 22.2.2008 passed by the Intellectual Property Appellate Board (hereinafter, referred to as 'Board') and the order dated 13.12.2002 passed by the Deputy Registrar of Trade- marks.

(2.) The brief facts which have given rise to the controversy between the petitioner and respondent No. 1 are as under:

(3.) Against the order dated 22.2.2008 passed by the Board, the petitioner has approached this Court by filing the present petition. The petitioner has assailed the order of the Board on the ground that the Board has erred in holding that there were no disputes with regard to the validity of the assignment in terms of Section 44 of the Trade and Merchandise Marks Act, 1958 (corresponding to Section 45 of the Trade Marks Act, 1999) and accordingly there was no question of the proviso to the said Section being applicable in the present case. Learned counsel for the petitioner further submits that exercise of jurisdiction of the learned Registrar of Trade-marks as well as the Board is quasi judicial in nature and not a mechanical exercise without application of mind and without following the principles of law. It is strongly urged before this Court that the Board has failed to appreciate that once the assignment had been revoked and notice of revocation had been given to the Registrar, assignment could not have been recorded to the detriment of the petitioner. Learned counsel for the petitioner submits that the Board has failed to appreciate that the assignment deed dated 1.4.1999 entered into between the petitioner and respondent No. 1 suffers from various legal infirmities, making the document void ab initio and unenforceable in law. Furthermore, there is a deliberate breach on the part of respondent No. 1 of the terms of the Memorandum of the Partition dated 12.3.1999 which according to the petitioner forms the basis of the deed of assignment dated 1.4.1999 entered into between the petitioner and respondent No. 1. The acts of breach pertain to non-payment of the consideration of Rs. 2.0 lacs as provided in the Memorandum of Partition and interference with the rights of M/s. Blumac Electrical India. It is also contended that the deed of assignment sought to assign goods in excess of those actually entered in the register or envisaged in the Memorandum of Partition.