9911796707
TMI Blog1990 (2) TMI 223X X X X Extracts X X X X X X X X Extracts X X X X ..... however, found that another manufacturer namely M/s. Doshi Electronics were also manufacturing watches with the brand name Master Piece . Proceedings were drawn against the appellants for the reason that they were not eligible for the benefit of Notification No. 175/86 in view of para 7 of the said Notification which for convenience of reference is reproduced below :- 7. The exemption contained in this notification shall not apply to the specified goods where a manufacturer affixes the specified goods with a brand name or trade name (registered or not) of another person who is not eligible for the grant of exemption under this notification : Provided that nothing contained in this paragraph shall be applicable in respect of the speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Consultant for the appellants submitted that while the appellants manufactured wall clocks, the manufacturer who owns the brand name Master Piece manufactured wrist watches, a different category of goods. He submitted that both the items fell under different tariff headings namely, 9105.00 and 9102.00 respectively. He pleaded that while tariff heading 9105.00 covering wall clocks was a specified heading for the purpose of availing the benefit of Notification No. 175/86, wrist watches falling under 9102.00 were, by a specific mention excluded from the purview of the benefit of the Notification. He pleaded that the brand name used in the context of non- specified goods could not disentitle the appellants from the benefit of the Noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard. It is observed that as per Section 8 of the Trade and Merchandise Marks Act, 1958, a trade mark can be registered in respect of any or all goods. In other words, a trade mark need not necessarily be in respect of all goods unless the registration has been so acquired. It is, therefore, quite possible and permissible to have the same trade mark/brand name for different classes of goods owned by different persons. In the instant case, the Company A" are the legal registered owners of the trade mark HOT LINE in respect of gas stoves whereas the Company B are the registered owners of the same trade mark but for the commodity television. In that view, Notification 223/87, dated 22-9-1987 cannot be relied upon to deny the exemption to C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for sale of the wall clocks which bore the description Master Piece . He pleaded that in the invoice the brand name Master Piece was mentioned for the sake of brevity and convenience but in fact the wall clocks sold were with the brand name Master piece regulator . Regarding the evidence of the buyers in this regard, he had nothing specific to say when his attention was drawn to the findings of the lower authorities with reference to the inquiries conducted with the parties who have been purchasing wall clocks from the appellants, and their averment they had been buying wall clocks with brand name Master Piece as mentioned in para 6 of the show cause notice. 3. The learned DR for the Department pleaded that there was enough evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion that arises for consideration is whether the use of another s brand name by itself alone, when the other manufacturer is not eligible for the benefit of the Notification simpliciter would disentitle the manufacturer from the benefit of the notification. Now it has so happened that the brand name may be used by a number of persons for different products and the said brand name may or may not be registered and the manufacturer claiming the benefit of the notification may or may not be aware of the use of the said brand name and there may or may not be a claim to the legal ownership of the brand name. If the mere use of the brand name belonging to another person would disentitle the manufacturer from the benefit of the exemption notifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laiming the benefit of the exemption notification. It does not matter whether the other person who has a right to the particular brand name or trade mark himself manufactures any specified goods or not. The plea made by the appellants that unless it can be shown that the brand name of the other persons is for specified goods the mischief of para 7 cannot be attracted as seen from the wording of para 7 read with Explanation VIII of the notification under which the terms brand name or trade name have been defined. The learned Consultant for the appellant has cited the instructions of the Board in regard to the brand name wherein the Board has clarified that use of a particular brand name registered for one product of another person does n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
