ZENITH COLOUR TRADING CO. Vs. TAHERALLY ESUFALLY RANGWALA

JUDGEMENT

(1.) THIS is a petition for rectification of the register of Trade Marks by entering in entry No. 80747 the disclaimer of the device of a cow and the word'cow' and its equivalents in Indian regional languages. The respondents deal in colours and dyes, and on June 12, 1943, they registered a trade mark consisting of a label, one feature of which is a cow. That registration is under No. 80747. The petitioners allege that in respect of colours and dyes manufactured by them they also used a label, the principal feature of which is a cow. They further allege that at the date of the respondents' application for registration there were current in the trade of colours and dyes several names, one of the principal features of which was a cow, and, therefore, the device of a cow was then common to the said trade, and lastly they allege that if the device of a cow is held not to have been common to the trade at the date of the application for registration, such device became common by reason of its adoption by many other manufacturers of dyes and colours with the knowledge of respondents No. 1. They, therefore, seek to have the entry rectified by putting in a disclaimer of the device of a cow and the word 'cow' or its equivalents in Indian regional languages.

(2.) A preliminary objection has been raised by Mr. Shavaksha to this petition. He contends that by reason of the provisions of Section 24 of the Indian Trade Marks Act the petition ought to be dismissed because the registration of respondents No. 1 has become final and conclusive by reason of the lapse of a period of 7 years from the date of registration.

(3.) NOW , Section 14 of the Trade Marks Act provides for an application for registration. When an application is accepted, Section 15 provides for the advertisement of the application and any person is entitled to give a notice of opposition to the registration. Then Section 16 provides that when there is no opposition, or where there having been opposition the Registrar has decided in favour of the applicant, the Registrar shal1 register the said trade mark. Obviously, therefore, there is of necessity a time lag between the date of application and the date of actual registration; but Sub -section (1) of Section 16 provides inter alia as follows: the trade mark, when registered, shall be registered as of the date of the making of the said application.' In other words, the registration dates back to the date of the application and the Sub -section further provides: and that date shall... be deemed for the purposes of this Act to be the date of registration. Therefore, the date of application is under this section the 'deemed' date of registration while the 'actual' date of registration must of necessity be a subsequent date; and the plea of Mr. Shah is that when Section 24 refers to 'the date of such original registration', it does not refer to the 'deemed' date of registration but it refers to the 'actual' date of registration.