B S RAMAPPA Vs. B MONAPPA

JUDGEMENT

(1.) THIS appeal arises out of a petition filed by the first respondent, who will hereafter be referred to as the respondent, on the original side of this court, under section 40 of the Indian Trade Marks Act, 1940, for a direction that the entry in the Trade Mark register at Bombay registering the trade mark referred to in paragraph 4 of the petition in the name of the appellant under No. 120012 be expunged from the register and that the registration granted to the appellant under the said entry be cancelled. The petition was disposed of after contest by rama-swami J. who allowed the petition to this extent, namely; that he directed a joint registration of the trade mark in the name of both the appellant and the respondent. The respondent in the court below is the appellant before us.

(2.) THE facts which led up to the petition have been fully sot out in the judgment of the learned Judge and it is sufficient to state only such of (he facts as are essential for the disposal of this appeal. The appellant and the respondent are the sons of one Bolar Ramappa who was carrying on the business of manufacturing tiles in two factories, one called the Indian National Tile and Lime Works at Hoige bazar in mangalore, and the other the Jayaram Tile Works at Kudroli in Mangalore. It is common ground that he was employing for the tiles manufactured at these two factories a distinctive trade mark which may be described as the "taj Double bavta" trade mark. In or about 1936 he appears to have registered the trade mark with the Chamber of Commerce at Madras, though this registration did not have any statutory force. The appellant appears to have been assisting the father in his business -- it is not necessary to state whether as a mere employee or as a manager. On the 18th December 1946 the appellant made an application to the registrar of Trade Marks to register the ahovesaid trade mark. He gave his business address as Manager, Jayaram Tile Works, Kudroli. He claimed to have been using the trade mark since 1936. Evidently in reply to a querry by the registrar of Trade Marks he made a statement on 23rd July 1948 that he was the sole proprietor of the National Tile Work and had been using the said mark since 1936. The trade mark was eventually registered in his name and entered in the register on 12th May 1950, This registration under the statute would take effect from the date of the application. On the 10th November 1953, this registration was renewed for a period of fifteen years from the 18th December 1953. Meanwhile the father had executed on the I7th January 1950 a deed settling on one of his sons, the respondent herein, Monappa, the factory called the Indian national Tiles Works. Subsequently by another deed dated 8th February 1953 the father settled on his second son, the appellant, the. factory conducted under the name of the Javaram Tile Factory. From July 1931 disputes started between the two brothers because the respondent also began to manufacture tiles using the trade mark which his father had been using. There was an exchange of notices between the'lawyers. In 1933 the appellant filed in the district court of South kanara a suit against the respondent for infringement of trade mark and claimed an injunction against him. In his plaint he stated that he was the registered proprietor of the trade mack and also relied on the settlement deed executed by the father in his favour on the 8th February 1953 which he alleged conveyed to liim also the goodwill and the trade mark and other rights pertaining to the factory. Thereupon the respondent filed the application out of which the present appeal arises, praying for expunging of the registration in favour of the appellant. (8) Section 46 (2) under which the application was made runs thus :

(3.) RAMASWAMI J. however, did hot do so but directed a joint registration of the trade mark in the name of both the appellant and the respondent. In his view the principle underlying Section 10 (2) of the Act, if not the letter, will apply to this case. Section 10 (2) of the Act is in the following terms :