HAYAKAWA DENKI KOGYO KABUSHIKI KAISHA (HAYAKAWA ELECTRIC COMPANY LTD) Vs. ASSOCIATED ELECTRONIC AND ELECTRICAL INDUSTRIES AND ANR.

JUDGEMENT

(1.) This Letters Patent Appeal is against the judgment of Venkatadri, J. in C.MA. No. 391 of 1965. The dispute is regarding the question whether the first respondent before us is entitled to have the word "Sharp" registered as its trade mark in respect of Transistor Radios, Radio Amplifiers and Inter -communication apparatus, in Part A of the Register. The first respondent is Associated Electronic and Electrical Industries by its partners, M.B. Lal, M.B. Hiranand and L. Mangharam doing business at Bangalore, hereinafter referred to as the Indian firm. The appellant is Hayakawa Danki Kogyo Kabushiki 'Kaisha (Hayakawa Electric Company Limited) doing business at Okasa, Japan hereinafter referred to as the Japanese firm. The Indian firm filed an application under the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) before the Assistant Registrar of Trade Marks, Madras for registering the word "Sharp" as its trade mark. It was so filed on 7th December, 1961 and was duly advertised in the Trade Marks Journal. Then the Japanese firm lodged a notice of Opposition. Affidavits by way of evidence as contemplated under the Act were filed by the respective parties before the Assistant Registrar, who refused to register the trade mark in the name of the Indian firm. Then the Indian firm filed an appeal to this Court which was heard by Venkatadri, J. The learned Judge held that the Indian firm was entitled to registration of the trade mark "Sharp" and therefore, the order of the Assistant Registrar Was set aside and the appeal was allowed. It is against this judgment of Venkatadri, J. the present Letters Patent Appeal is filed by the Japanese firm.

(2.) First we shall notice the facts established in this case. The Japanese firm is a reputed one and it seems to have celebrated its Golden Jubilee in 1961 or so. The word "Sharp" is its trade mark in Japan. Under this trade mark the Japanese firm was selling Radios, Television sets etc. for a long number of years. The Japanese firm has international reputation and it is stated that its goods are marketed in many other countries though there is no evidence to show that the word "Sharp" had been registered as a trade mark for the said firm in any other country than Japan. However, the goods of the Japanese firm had never entered the Indian market. The Japanese firm claimed before the Assistant Registrar that prior to 1939, that is the year in which Japan entered the second World War, Transistor Radios of the Japanese firm were being sold in India and that only because of the War, the export of Transistor Radio sets to India had been stopped. It was also its case that some years after the War came to an end, it corresponded with an Indian firm in Calcutta and also sent its catalogues to the Calcutta firm with the idea of recapturing the Indian market. The Assistant Registrar has not accepted the case of the Japanese firm that it had been selling its Transistor sets in India up to the year 1939. The Assistant Registrar also found that even though the Japanese firm had sent its catalogues to the Calcutta firm that fact is no avail regarding the present controversy. It is now accepted by the Japanese firm that prior to 1969, its goods had never entered the Indian market.

(3.) The Indian firm has an associate concern which is a proprietary one under the name and style of Lekhraj Jassumal and Sons. Mangharam, one of the partners of the Indian firm is the proprietor of the above concern and he is no other than the father of M. B. Lal and M.H. Hiranand, the two other partners of the Indian firm. Hiranand was the person who was actively engaged in the affairs of the Indian firm as well as its associate, Lekhraj Jassumal and Sons. Hiranand had been to Japan in or about June 1959 and then, for the first time, he contacted the Japanese firm. The Japanese firm agreed to supply kits of Transistor Radio sets of a particular model to the Indian firm which the Indian firm Was to assemble and sell in the Indian market. Accordingly the Japanese firm did supply 5oo kits of Transistor Radio sets of a particular model, on the Indian firm getting the necessary import licence therefor. The kits so imported formed the major components for the Transistor Radio sets and the Indian firm assembled them at Bangalore, using some more components, than the kits supplied by the Japanese firm. The Japanese firm had supplied along with the goods the metal badge containing the word "Sharp". The Indian firm marketed the Transistor Radios so assembled by it as its goods.