GIREESH GANGADHARAN Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is a businessman and the Director of two private limited companies; GG Management Solutions Private Limited and Bharath Integrated Solutions Private Limited. GG Management Solutions Private Limited was incorporated on 29/4/2010 with the name 'GG Resources Management Private Limited', which was later changed as GG Management Solutions Private Limited. The name 'GG Management Solution Private Limited' was chosen, since 'GG' is the abbreviation of petitioner's name; Gireesh Gangadharan. The petitioner intends to start a new company for conducting business in software designing, development, customization, implementation, maintenance, testing, benchmarking, automation, developing, and dealing in computer software and solutions and to import, export, sell, purchase, distribute, host and undertake IT-enabled services, customer support, database management, data science, data processing and providing information and statistics to enhance customer experience of products. Being desirous of including the abbreviation GG for the new company also, petitioner proposed the name 'GG Net Solutions Private Limited'. The relevant provisions of the Companies Act, 2013 require every person intending to incorporate a company has to commence the registration process by reserving the name of the company. The procedure for reservation is prescribed in the Companies (Incorporation) Rules, 2014. As per the Rules, the application for reservation has to be submitted through the web service available at www.mca.gov.in through the service, SPICE+ (Simplified Proforma for Incorporating Company Electronically Plus: INC-32). SPICE + is divided into two parts; SPICE+ Part A for name reservation and SPICE+ Part B for entry of documents required for incorporation. Accordingly, the petitioner submitted Ext.P3 application along with requisite documents. To the petitioner's dismay, the application was rejected stating that the proposed name contained the word 'GG', which is a registered trademark and therefore, undesirable as per Rule 8A(1)(b) of the Companies (Incorporation) 5th Amendment Rules, 2019. The rejection of petitioner's application was communicated under Ext.P4. Aggrieved, this writ petition is filed seeking the following reliefs;

(2.) Adv.Lakshmi Sreedhar, learned Counsel for the petitioner, contended that the rejection is per se illegal. The following submissions were made in In elaboration of the contention; As per Sec. 4(2) of the Companies Act, the name stated in the Memorandum of Association of the Company shall not be such that its use by the Company is undesirable in the opinion of the Central Government. Going by Rule 8A of the Companies (Incorporation) Rules, 2014, the name shall be considered undesirable if (a) it is prohibited under the provisions of sec. 3 of the Emblems and Names (Prevention and Improper Use) Act, 1950 (12 of 1950), (b) the name includes a trade mark registered under the Trade Marks Act, 1999 in the same class of goods or services in which the activity of the company is being carried out or is proposed to be carried out (c) the name includes any word or words which are offensive to any sec. of the people and (d) the proposed name is identical with, or too nearly resembles, the name of a limited liability partnership. Thus, the proposed name will be undesirable if the name includes the trademark registered under the Trade Marks Act, 1999 and is in the same class of goods in which the activity of the Company is being carried out or it proposed to be carried out. It is contended that since the object of the proposed company and that of the registered trademark holder being entirely different, the finding that the proposed name is undesirable cannot be sustained. Further, 'GG' is the registered device trade mark and not a word mark and cannot therefore be an impediment in registering a new company. Finally, it is contended that a large number of companies containing the name 'GG' were incorporated without objection. In support of this contention, attention is drawn to Table II in paragraph 10 of the writ petition;

(3.) Learned CGC countered the challenge by putting forth the following contentions; The word mark GG is registered with Shri. Ravi Giani, sole proprietor of the trading firm, M/s Giani under Class 42 with application No. 4236276 w.e.f. 28/9/2020. The Goods and service description of that company are;