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TMI Blog2023 (6) TMI 1009X X X X Extracts X X X X X X X X Extracts X X X X ..... ) alleging infringement of seven trademarks over which she had proprietary rights acquired through a deed of assignment executed in her favour by Duckbill, the registered owner of those marks. The learned court refused to grant an order of injunction restraining Duckbill from using the marks. In those circumstances, the present appeal was filed in this court by Poulami. On 24th January, 2023 the appeal and the connected application for injunction (FMAT 9 of 2023 with CAN 1 of 2023 & CAN 2 of 2023) came up before this court for admission and consideration of an interim order. An affidavit of service was filed. We recorded in our order passed on that day that apart from the second respondent Swapan Kumar Mukherjee, an ex-director of Duckbill and father-in-law of Poulami, no other respondent was represented in court. Upon scrutiny of the impugned judgment and order we found that although the learned Judge had found prima facie infringement of those trademarks by Duckbill yet he refused to pass any order of injunction. At the admission stage, without the assistance of the entire papers and detailed submissions, our notion was that under well settled principles of intellectual proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata - 700034 who were to run Duckbill as a going concern and a sale certificate issued to them. Under Section 45 of the Insolvency and Bankruptcy Code, 2016, any transaction before two years of commencement of the Insolvency cannot normally be considered by the court or adjudicating authority as a fraudulent preference. An extraordinary situation has been created by the production of a deed of assignment dated 3rd April, 2017 under which seven trademarks were purportedly assigned by Duckbill to Poulami for a consideration of Rs. 7,000/-, a letter dated 4th April, 2017, by Poulami to Duckbill that she had became the owner of seven trademarks; a form dated 18th January, 2022 by Poulami to the Registrar of Trademarks for recording this assignment in his records and a document issued by the Trade Marks registry showing that the assignment was registered on 14th June, 2022. Apparently, on 7th November, 2022 Paul Brothers wrote to the Liquidator that they had discovered that seven trademarks had been transferred to Poulami. On 9th November, 2022 the Liquidator asked the Registrar of Trade Marks to reverse the transfer. The case of Duckbill is that a colossal fraud has been practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ court and before NCLT on these proceedings was not argued. I only observe that the proceedings before the writ court and the NCLT were commenced by Duckbill whereas the substantive suit from which this appeal is entertained by us was preferred by Poulami. ARGUMENTS According to Mr. Abhrajit Mitra, learned senior counsel for Duckbill, the deed of assignment is clearly backdated. In support of his contention, he said that on 18th January, 2022 when the deed of assignment was lodged with the registry only seven out of the fourteen trademarks were valid, though on 3rd April, 2017 fourteen trademarks were alive. Suspiciously, the deed of assignment related only to seven trademarks. It was cleverly dated so as to appear to have been executed before two years of the insolvency commencement on 17th December, 2019, so as to make the transaction valid and not a fraudulent preference under Section 45 of the above Code. According to learned counsel, very astonishingly, the deed of assignment also included two trademarks Brofentol Plus and Cyaptin which were registered on 2nd August, 2018. Furthermore, what casts a cloud of doubt on the whole transaction was that whereas Duckbill purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the appellant that Duckbill had been duly served was erroneous. Records were placed before the court to show that Duckbill received service of the papers in the evening of the day when the order was passed. We have also checked all the records. The contention of Duckbill appears to be true. Learned counsel arguing matters in court rely on instructions. Indeed, the instructions received by learned counsel were incorrect. We do not ascribe any ill motive on the part of learned counsel. We, in the strongest words deprecate the conduct of the advocate-on-record instructing counsel. While going through the application to vacate our order dated 24th January, 2023 and the affidavits filed, we found that all the material papers necessary to hear out the appeal were before us. So, while hearing out the application to vacate our judgment and order dated 24th January, 2023, we also had an opportunity to hear out the appeal on merits. In those circumstances, we hold that there was sufficient cause which prevented Duckbill from attending court when the appeal was heard on 24th January, 2023. We set aside the order dated 24th January, 2023. At the same time, we have treated the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g in the records to suggest that out of those trademarks, seven had been transferred in 2017. As rightly pointed out by Mr. Mitra all fourteen marks were valid on the alleged date of execution of the deed of assignment whereas in 2022 only seven trademarks were valid. Furthermore, two of the marks were registered only in 2018. Then why only seven trademarks were allegedly assigned in 2017? Why would the application for recording of the assignment of the seven trademarks be made on 18th January, 2022 about 5 years after it was purportedly assigned on 3rd April, 2017? What is most significant is that these marks were assigned by the father-inlaw on behalf of the company to her daughter-in-law for only Rs. 7,000/- whereas about rupees 5 crores have been paid by Duckbill to purchase these marks. Chapter V of the Trade Marks Act, 1999, deals with the assignment or transmission of the trademarks. Section 42 provides that if an assignment of trademark is made otherwise that in connection with the goodwill of the business in which the mark has been used, the assignment shall only take effect if within six months or an extended time of three months as the Registrar allows such assignment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the liquidator. The earlier management could not have in January, 2022 brought to life an assignment which was a dead letter. Furthermore, it could not do any act which would deprive the company of its valuable assets. I am of the view that a deliberate attempt was made by Poulami and her father-in-law to divest Duckbill of its principal assets that is the trademarks and misappropriating them, by backdating a deed of assignment to 2017 and then filing it with the trademark registry five years later. The dating of the alleged deed of assignment that is 3rd April, 2017 raises eyebrows for another reason. It was more than two years before the commencement of insolvency proceeding on 17th December, 2019 so as to take it out of scanner and scrutiny under the 2005 Insolvency and Bankruptcy Code, 2016, as a fraudulent preference. In those circumstances, the ultimate order passed by the learned trial Judge at the ad interim stage that he was not minded to pass an interim order of injunction was justified, though it should have been for the reasons given above. Whether our interim order in appeal was obtained by suppression of material facts is redundant because we are ultimately s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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