2013 (2) TMI 631 - HC - Indian Laws

Intellectual Property - registration of trade mark MAJA label in the name of one Shantikumar Ratilal trading as Shashi Industries - held that - the Board has rightly observed that the Registrar dealt with the application which was not before this Court and the directions of this Court have not been complied with. The Board has also rightly observed that the Registrar has gone beyond the directions of this Court. The directions issued to decide the application on Form TM-16 for amending the name of the petitioner, as a mistake had crept in due to lapse on the part of the counsel, but the Registrar failed to deal with the said application and instead proceeded to decide another application and passed orders allowing the said application. The petitioner has miserably failed to substantiate its claim that application was erroneously or inadvertently filed in wrong name. The original file of the application is already lost and cannot be reconstructed as admittedly even the petitioner does not have true copies of papers and his counsel has destroyed his file. The petitioner has failed to justify as to why the application for amendment was moved after orders were reserved in 1995 while the petitioner filed affidavit of evidence in correct name in January, 1994 itself.

Issues Involved:
1. Challenge to the order passed by the Intellectual Property Appellate Board.
2. Registration of the trade mark "MAJA."
3. Alleged typographical error in the name of the applicant.
4. Compliance with the directions of the High Court.
5. Justification for amendment applications and the existence of a partnership deed.

Issue-Wise Detailed Analysis:

1. Challenge to the Order Passed by the Intellectual Property Appellate Board:
The petitioner challenged the order dated January 7, 2010, passed by the Intellectual Property Appellate Board (the Board), which allowed the appeal of respondent No.1 against the order dated February 6, 2004, by the Assistant Registrar of Trade Marks. The Board refused registration of the petitioner's application, stating that the directions issued by the High Court were not complied with.

2. Registration of the Trade Mark "MAJA":
The petitioner applied for the registration of the trade mark "MAJA" in 1985, claiming use since that year. The application was opposed by respondent No.1, who claimed prior use of the mark "MAJA" since 1961 in relation to perfumery and cosmetics. The Assistant Registrar initially dismissed the opposition and allowed the registration, which was later challenged and set aside by the Board.

3. Alleged Typographical Error in the Name of the Applicant:
The main thrust of the petitioner's defense was that the application was filed in the wrong name due to a typographical error by the counsel. The High Court had previously allowed an appeal on these grounds and remanded the matter for fresh consideration, directing the Registrar to allow the petitioner to lead proper evidence to substantiate the amendments.

4. Compliance with the Directions of the High Court:
The Board observed that the Registrar did not comply with the High Court's directions to decide the application on Form TM-16 for amending the name of the applicant. Instead, the Registrar proceeded to decide another application and passed orders allowing it. The Board found this approach to be beyond the directions of the High Court.

5. Justification for Amendment Applications and the Existence of a Partnership Deed:
The petitioner failed to justify why the amendment application was moved after orders were reserved in 1995, despite filing an affidavit of evidence in the correct name in January 1994. Additionally, the petitioner did not disclose the partnership deed, executed in 1994, in the amendment applications filed in 1995. The Board noted that there was no proof of how the partnership firm acquired the proprietary right to the trade mark from the sole proprietor, raising doubts about the petitioner's claims.

Conclusion:
The High Court upheld the Board's decision, stating that the petitioner failed to substantiate its claim of an inadvertent error in the application. The original application file was lost, and the petitioner could not provide true copies of the papers. The court also noted that the petitioner had two other applications for the same mark pending adjudication, and the trade mark rights are governed by priority in use date, not the registration date. Consequently, the petition was rejected, and no relief was granted to the petitioner.

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