9911796707
TMI Blog2019 (2) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... e name. Thus, undeniably, prior to 15th September, 2003, there was no obligation on the part of any company to change its corporate name if such direction was not issued by the Central Government within a period of twelve months of its first registration, or registration of its changed name. The proviso to Section 22(1)(ii) of the Companies Act clearly indicates that a proprietor of a registered trademark is not precluded from making an application within a period of five years “of coming to notice of registration of company”. Thus, this Court is of the view that the power of RD to examine such a complaint, which is not beyond the period as prescribed under the proviso, has to be inferred - The provisions of the statute must be interpreted to ascertain the intention of the legislature. In cases where there is no ambiguity in the language of the statute, the same must be literally construed. However, in another cases, it would be necessary for the Court to press into service other principles of statutory interpretation to ascertain the legislative intent. The proviso to Section 22(1)(ii) of the Companies Act is to preclude the registered proprietor of the Trademark from making an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter ʻthe impugned orderʼ) rejecting the petitioner s application under Section 22 of the Companies Act, 1956 (hereafter ʻthe Companies Actʼ). 2. The petitioner had, inter alia, filed the aforesaid application praying that directions be issued to respondent no.4 to delete the letters ʻNTKʼ from respondent no.4ʼs corporate name NTK Bearings Private Limited. The said application was founded on the petitioner being the proprietor of the registered Trademark ʻNTKʼ. Respondent no.2 (hereafter ʻRDʼ) rejected the aforesaid application on the ground that it was highly belated, and more than five years had passed from the date of incorporation of respondent no. 4 company. The petitioner claims that its application was filed within a period of five years of becoming aware of the respondent no. 4 company and, therefore, within the period as stipulated in the proviso to Section 22(1)(ii) of the Companies Act. Factual Background 3. The petitioner is a company organized under the Laws of Japan. The petitioner claims that it was established on 26th October, 1936 and is a company of international repute. The petitioner is engage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the office of RD on 15th March, 2013 in connection with another matter and was informed that the order dated 25th July, 2011 was a final order rejecting the petitioner s application. 12. Thereafter, the petitioner filed the present petition on 01st, August, 2013. Discussion and Conclusion 13. Before proceeding further, it would be relevant to refer to Section 22 of the Companies Act, which reads as under:- 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 identical with, or too nearly resembles, the name by which a company in existence has been previously registered, whether under this Act or any previous companies law, the first-mentioned company, or (ii) on an application by a registered proprietor of a trade mark, is in the opinion of the Central Government identical with, or too nearly resembles, a registered trade mark of such proprietor under the Trade Marks Act, 1999, such company, (a) may, by ordinary resolution and with the previous approval of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Government in issuing a direction within the period of 12 months as contemplated under Section 22(1)(ii) of the Companies Act. 17. The proviso to Section 22(1)(ii) of the Companies Act clearly indicates that a proprietor of a registered trademark is not precluded from making an application within a period of five years of coming to notice of registration of company . Thus, this Court is of the view that the power of RD to examine such a complaint, which is not beyond the period as prescribed under the proviso, has to be inferred. 18. The provisions of the statute must be interpreted to ascertain the intention of the legislature. In cases where there is no ambiguity in the language of the statute, the same must be literally construed. However, in another cases, it would be necessary for the Court to press into service other principles of statutory interpretation to ascertain the legislative intent. The proviso to Section 22(1)(ii) of the Companies Act is to preclude the registered proprietor of the Trademark from making an application under Section 22(1)(ii) of the Companies Act beyond the period of five years of such proprietor coming to notice of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons filed within the period contemplated under the proviso. 20. It is important to note that the proviso to Section 22(1)(ii) of the Companies Act was inserted by virtue of Section 158 of the Trademarks Act, 1999 (Act 47 of 1999) with effect from 15th September, 2003. 21. Section 33(1) of the Trademarks Act, 1999 also provides that a proprietor of a registered trademark would not be entitled to challenge the registration of a trademark if he has acquiesced in use of that trademark for a continuous period of five years. Section 33(1) of the Trademarks Act, 1999 is set out below:- (1) Where the proprietor of an earlier trade mark has acquiesced for a continuous period of five years in the use of a registered trade mark, being aware of that use, he shall no longer be entitled on the basis of that earlier trade mark ‒ (a) to apply for a declaration that the registration of the later trade mark is invalid, or (b) to oppose the use of the later trade mark in relation to the goods or services in relation to which it has been so used, unless the registration of the later trade mark was not applied in good faith. 22. It is apparent that the legislative inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication under Clause (ii) can be made of five years of coming to notice of registration of the company . 26. The details of all companies that are incorporated are placed in public domain by the Registrar of Companies, and it is necessary to be presumed that all persons have due notice of the same. There is no provision of providing separate notices of such incorporation. Plainly, it is not open for the respondents to extend the period of limitation by claiming ignorance of the incorporation of respondent no.4 company for a period of almost six years. 27. There is yet another perspective which persuades this Court to accept that the power of the Central Government to issue a binding direction would not extend beyond the period of five years from the date of first registration or from the date of registration of the name of the change in the name of the company. 28. As noticed above, there is a conflict in the plain language of the main provision Section 22(1)(ii)(b) and the plain language of the proviso to Section 22(1)(ii) of the Companies Act. Whereas, the proviso to Section 22(1)(ii)(b) precludes a proprietor of a registered trademark to make an application after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation for filing an application under Section 22(1)(ii) of the Companies Act had expired on 18th June, 2002, that is, after expiry of twelve months from the date of incorporation. He had submitted that at the material time, the proviso to Section 22(1)(ii) of the Companies Act was not enacted. He contended that the operation of the proviso should be construed prospectively and would not revive the right of a proprietor of a registered trademark to apply under Section 22(1)(ii) of the Act in cases where such right had already elapsed. 34. In view of the discussion above, this Court does not consider it necessary to examine the aforesaid contention. Further, this is also not the ground on which the petitioner s application was rejected by the RD. 35. Quite apart from the merits of the impugned order, this Court is also of the view that no interference by this Court would be warranted in the facts of this case. Even according to the petitioner, the petitioner was fully aware of the existence of respondent no.4 as early as on 03 April, 2006. Yet the petitioner waited for over more than two and a half years for filing an application before the RD. 36. The RD had rejected the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
