J L MEHTA Vs. REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) A short but rather an interesting question has been raised on this petition and the question is as to whether the word "sulekha" which was registered as a trade mark by the Registrar of Trade Marks as far back as on 4th May 1953, in connection with fountain pens, nibs, etc, which were being manufactured by the petitioners means "good writing" so that it amounts to a description of the fountain pens and other materials manufactured by the petitioners, in which event, that word would not be registrable as a trade mark.

(2.) IT appears that the petitioners started the business of manufacturing fountain pens and other materials some time in 1951. They dealt in these fountain pens and other materials as "sulekha" fountain pens and materials. On 8th January, 1952 the petitioners applied to the Registrar of Trade Marks for registration of the word "sulekha" as a trade mark in connection with the fountain pens and other materials that they were manufacturing and dealing in. After the necessary enquiry under the Trade Marks Act by an order dated 4th May, 1953, the application made by the petitioners was granted and the word "sulekha" was registered as a trade mark in connection with the petitioners' fountain pens and other connected materials. It may be noted that in the application that was made for the registration of the trade mark, the petitioners had stated that "sulekha" was the name of a female and at the hearing of the application evidence was led to show that that word had attained a distinctive character in relation to their fountain pens and other materials. No contention then appears to have been raised either by the Registrar of Trade Marks, or by any member of the public that the word "sulekha" was in any way or in any sense descriptive of the pens that were being manufactured by the petitioners so as to indicate their nature or quality. The Registrar, apparently, was satisfied that the word was in vogue as the name of a female person and also that it had obtained a distinctive character by reason of the petitioners having dealt in the pens and other materials manufactured by them under that name. It was only after the Registrar was thus satisfied that he had passed the order for registration of the word "sulekha" as a trademark in connection with the petitioners' fountain pens and other connected materials.

(3.) ON 6th February, 1956, however, it appears, the Registrar of Trade Marks, who apparently was not the same gentleman who had ordered the registration of the trade mark in 1953 gave a notice to the petitioners calling upon them to show cause as to why the register of trade marks should not be rectified by expunging therefrom the entry relating to the trade mark No. 152234 in relation to the word "sulekha" in exercise of his powers under section 46 (4) of the Trade Marks Act, for the reason that in his opinion the word "sulekha" meant "good writing" and that it was not adopted to distinguish goods in respect of which it was registered, namely, fountain pens, pencils, pen-holders, and parts thereof. In answer to this notice, the Petitioners appeared before the Registrar and after hearing the contentions advanced on their behalf, he came to the conclusion, that although there was no doubt that the word was in vogue as the name of a female person it also meant "good writing" according to three of the six dictionaries of the languages in vogue in India and that, therefore, the word offenced against the provisions of Section 6 of the Trade Marks Act as being descriptive of the pens, pencils, nibs etc. , which were being manufactured by the petitioners and, therefore, he ordered the register of trade marks to be rectified by expunging the entry therefrom as stated above. It is against this order passed by the Registrar of Trade Marks that the present petition has been filed in this Court by the petitioners.