KISHORE BHAI N. PITHVA Vs. LAXMIKANT CHATURBHAI SIDHPURA

JUDGEMENT

(1.) THIS is an application under section 50 of the Copyright Act, 1957 for rectification of the Register by expunction of registration number A79525/2007. The matter was heard at Mumbai on 24.9.2009. Applicant has submitted that he employed an artist and got prepared artistic label consisting of words 'POPULAR'. He preferred requisite application for registration of trade mark which is under due process. He has produced necessary evidence therefor. Respondent No. 1 too is in the same business and has managed to obtain registration certificate for the work under title 'POPULAR'. On carrying out a search with the office of the Registrar of Trade Marks, the applicant has come to a conclusion that the certificate issued by the Registrar of Trade Marks to the respondent number 1 is against the provisions of the Trade Marks Act, 1999 since his application for registration under section 45(1) of the Copyright Act, 1957 is pending with the said Registrar.

(2.) RESPONDENT No. 1 has denied the averments of the applicant, more particularly in relationship to his engaging an artist for preparing his label. A receipt from an alleged artist dated 1st January, 1964 does not give the description of the work done. In any case, as per the respondent, he had been using the label earlier to that date. As per the respondent, he got the work prepared from an artist on 22.4.1958 for which he obtained a receipt from him. Respondent has submitted that his father started the firm on 1.5.1958 and had been filing income returns regularly since then. He has referred to various registrations obtained from the Government and Municipal authorities in this regard. Respondent claims to have filed registration application for trade mark on 20.4.2004. Applicant has not been issued any trade mark certificate by the Registrar of Trade Marks. Impugned registration was granted by the Dy. Registrar of Copy right after following the due procedure as stipulated in section 45 of the Act which makes it obligatory on and after necessary certificate (TM 60) is issued in favour of the applicant by the Registrar of Trade Marks. Applicant has nowhere challenged the issuance of the certificate by the Registrar of Trade Marks before that Registrar or the Intellectual Property Appellate Board. Respondent has denied the other averments of the applicant.

(3.) LEARNED counsel for the applicant submitted that TM60 certificate issued by the Registrar of Trade Marks on 16.3.2007 under proviso to section 45(1) of the Copyright Act, 1957 cannot be relied upon since when that certificate as to there being not pending or under consideration an application for registration of a mark identical or deceptively similar was issued, the application number 1277671 dated 8th April, 2004 of the applicant for registration of mark/label "Popular" was pending as having been notified in the Trade Mark Journal No. 1327 Suppl (1) dated January 3, 2005. In view of that, the certificate issued by the Registrar of Trade Marks is not worthy of reliance.