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TMI Blog2013 (4) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... spectively. The petitioner No. 3 is the son of petitioner No. 5. Respondent No. 3 is The Registrar of Companies. Respondent No. 4 is VOV Cosmetic Private Limited on whose application the impugned order was passed. Respondent Nos. 5 and 6, Dharamshi Manji Patel and Ramji Bhikhabhai Ahir, are the directors of respondent No. 4. 4. From the year 1986, petitioner No. 5 carried on business of manufacturing and marketing cosmetics in the firm name and style of Pioneer Products as the sole proprietor thereof. The products were sold under the mark "VOV". By and under a deed of partnership dated 20h February, 2012, petitioner Nos.3 and 5 carried on business in the firm name and style of petitioner No.2 - Pioneer Products. Petitioner No.2 continued the business of manufacturing and marketing cosmetic products hitherto carried on by petitioner No.5. The petitioner stated that with the consent of petitioner No.5, petitioner Nos.2 and 3 "borrowed essential and distinctive characteristic VOV in the name of the company". We presume that by this, it is meant that petitioner No.5 permitted petitioner Nos. 2 and 3 to use the said mark. The petitioners state that with a view to expand their busine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered on 15th September, 2011. 10. Before referring to the impugned impugned order, it would be convenient to set out sections 20 and 21 of the Companies Act :- "20. Companies not to be registered with undesirable names.- (1) No company shall be registered by name which, in the opinion of the Central Government, is undesirable. (2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearly resembles,- (i) the name by which a company in existence has been previously registered, or (ii) a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999, may be deemed to be undesirable by the Central Government within the meaning of sub-section (1). (3) The Central Government may, before deeming a name as undesirable under clause (ii) of sub-section (2), consult the Registrar of Trade Marks. ....................... 22. Rectification of name of company.-(1) If through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name which,- (i) in the opinion of the Central Government, is ident ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with in the impugned order. The order, after setting out the facts as well, proceeds to read as under :- "...................... Hence, what has to be decided u/s. 22(1) (i) is whether in the opinion of the Central Government, the name obtained under sec.20 of the Companies Act, 1956, by the respondent company is undesirable as it is identical with or resembles with the name of the company in existence which has been previously registered under the Companies Act, 1956. ........................ The provisions of sec.22(1)(i) of the Act is clearly attracted. WHEREAS, ..................................the Central Government is of the opinion that the respondent company has registered its company with an identical name as that of the applicant company and hence respondent company is hereby directed u/s.22 of the Companies Act, 1956, by the undersigned ..........................................................to change its name within 3 months of the date of this order by deleting the word "VOV COSMETIC" from its name and accordingly apply for such name as may be available u/s.21 of the Act to the ROC and comply with the other provisions of the Companies Act for affecting such change ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company by a name which is identical with or too nearly resembles the name by which a company has been previously registered. 15. This is with good reason. Companies alone are not entitled to own trademarks. Any person is entitled to own a trademark. The inclusion of a mark in the name of a company constitutes the use of a mark and the same can, therefore, be restrained by an injunction in an action for infringement and/or passing off. Section 20, therefore, safeguards the proprietary rights and interests of the owners of a trademark against infringers. Were it otherwise, an infringer could easily defeat the rights of the proprietor of the mark by the simple expedient of having a company registered by a name, a prominent and dominant part whereof contains the mark of another. In such a case, it could not be said that the name by which the subsequent applicant seeks registration of a company is undesirable though he is the proprietor of the mark entitled to use the same to the exclusion of others. 16. It was contended on behalf of the respondents that, in any event, the language of section 22 is entirely different from that of section 20. It was contended that under section 22, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtence or otherwise, registered by a name that is undesirable by providing for the rectification of the name of such company. 18. There appears to be good reason for conferring such discretion upon the Central Government even where a subsequently registered company is registered by an identical name or a name that closely resembles the name of a previously registered company through inadvertence or otherwise. If, for instance, the subsequent registration is merely through inadvertence, there is no reason why it's name should be changed despite the fact that the Central Government comes to the conclusion that the name is not undesirable. There may also be cases where the facts that transpire after such inadvertent registration warrant the continuation of the registration by the said name. Take for instance a case where after the inadvertent registration, the company obtains a registration of the trademark under the Trademarks Act or where such a company obtains an injunction restraining the previously registered company from using the mark as part of it's corporate name. It would be an empty formality for the Central Government to first require the change in the name and thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X
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