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TMI Blog2022 (12) TMI 1541X X X X Extracts X X X X X X X X Extracts X X X X ..... ectification of the name of the company which are identical with or too nearly resembles the registered trademark of any proprietor under the Trademarks Act. Therefore, merely because an interim order was not in favour of the third respondent in the civil suit, that will not have any relevance to decide the application filed under Section 22 of the Companies Act since both Section 29 of the Trademarks Act and Section 22 of the Companies Act operate in different field and independent of each other. The Delhi High Court in Montari Overseas Ltd., Vs. Montari Industries Ltd., [ 1995 (12) TMI 268 - HIGH COURT OF DELHI ] has held that the remedy under Section 22 of the Companies Act and other common law will operate in different fields. The Delhi High Court in K.G.Khosla Compressors Ltd., Vs. Khosla Extrakting Ltd [ 1985 (6) TMI 197 - DELHI HIGH COURT ] has held that the jurisdiction of the Civil Court is independent of and separate from that of the Central Government under Section 20 of the Companies Act. Merely because injunction was rejected in favour of the 3rd respondent, it cannot be said that he has no remedy under the Companies Act. As the Companies Act operate in a different fie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner company has been marketing its goods under a brand name/trade name duly registered with the appropriate authority under the Trade Marks Act. The trade mark registration has been obtained by the company for its product since 2003. (iii) The petitioner company was named as Raymond Pharmaceutical Private Limited, on the understanding that it is a common Christian name and as per the Reader's Digest Great Encyclopedic Dictionary the word meant mighty protection . Initially the representative of the petitioner company addressed a communication dated 23.07.82 to the Registrar of Company, Karnataka suggesting three words to be prefixed namely Raymond Osmond and Esmond all being Christian name having an identical meaning namely Mighty name or God's protection . They received a reply dated 19.08.82 from the said authority informing the petitioner that there does not appear to be any objection to the registration of the company by the name Raymond , and accordingly the petitioner company filed necessary application under the Companies Act, and got it registered on 21.03.1983 with the name Raymond Pharmaceutical Private Limited . (iv) The petitioner ever since was carrying on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The 3rd respondent filed an appeal against the said order, which also came to be dismissed. Thereafter the 3rd respondent moved a petition for special leave to Appeal before the Hon'ble Supreme Court which also after hearing the counsels for the 3rd respondent herein refused to interfere with the judgment of the Bombay High Court. (viii) The 3rd respondent after being unsuccessful in its attempt to resist the petitioner company from using the word Raymond before the Bombay High Court and the Hon'ble Supreme Court, belatedly filed an application on 13.09.2010 under Sections 20 22 of the Companies Act before the 2 respondent herein seeking rectification of the name of the petitioner company so as to remove the word Raymond there from. (ix) In the said application, the 3rd respondent after adverting to the various facts narrated above claimed for the first time that it came in knowledge of the fact that the Petitioner company was using the word Raymond in its corporate through an email dated 12.09.2005 and claimed to be received on 13.09.2005 and accordingly contended that it has fulfilled the conditions of limitation imposed under Section 22 of the Companies Act by filing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old that the name Raymond as a prefix to the petitioner's company name result in misleading the general public. 5. The learned counsel appearing for the petitioner further submitted that the second respondent ought to have held that the provisions contained in Section 22 of the Companies Act, cannot be extended beyond the right available to them in terms of Section 29(5) of the Trade Marks Act viz., the right on the goods and services for which the trade mark has been registered in their name. 6. It is further contended by the learned counsel appearing for the petitioner that proviso contained in Section 22(1) read with Sub Section ii(b) of the Companies Act only provided a maximum of 12 months of a company's first registration or from the date of commencement of the Act whichever is later, the period of 5 years provided under the proviso cannot be interpreted so as to direct any company to change its name even after 29 years of its existence holding the same name, as it would otherwise lead to any person claiming knowledge within short span of time to extinguish the vested right available to such companies. 7. The learned counsel for the petitioner further submitted that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontari Overseas Ltd. Vs. Montari Industries Ltd. reported in ILR 1997 Delhi 64. (iv) K.G.Khosla Compressors Ltd., Vs. Khosla Extraktions Ltd. reported in AIR 1986 Delhi 181. (v) CGMP Pharmaplan Pvt. Ltd., Regional Director reported in MANU/DE/2116/2010. (vi) Mondelez Foods Private Limited Vs. The Regional Director reported in (2017) 204 Comp Cas 169. 9. I have heard the learned counsel appearing on either side and also perused the entire materials available on record carefully. 10. Challenge has been made to the impugned order dated 17.07.2012 passed by the second respondent, under Section 22 of the Companies Act directing the petitioner viz. Raymond Pharmaceuticals Private Limited registered in the State of Tamil Nadu, Chennai to change its name within a period of three months from the date of the said order. 11. The 3rd respondent has filed an application claiming that the writ petitioner has registered his company in the name Raymond Pharmaceuticals Private Limited in the State of Tamil Nadu much after the registration of the trademark of the 3rd respondent. The third respondent was original incorporated in the year 1925 under the Companies Act, 1913 in the name The Raymond Wool ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 15. A perusal of the above Section makes it clear that the name by which a company is in existence has been previously registered or 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, such company may be deemed to be undesirable by the Central Government within the meaning of sub-section (1). 16. Section 22 of the Companies Act deals with Rectification of name of company, the said section reads as follows: Section 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it had all the trappings of the Court while conducting proceedings and Limitation Act will certainly be applicable. The Hon'ble Apex Court in State of Madhya Pradesh Vs. Anshuman Shukla reported in (2008) 7 SCC 487 has held that Administrative Bodies and Tribunal if in fact having the characteristics, functions and powers of a Court and therefore for all intents and purposes they are Courts. 20. It is not disputed that the application has been submitted to the second respondent on 13.09.2005 and it is also not disputed that the limitation period clearly ends on 12.09.2005. It is also not disputed that 12.09.2005 is a Sunday. As 12.09.2005 being a Sunday, the 3rd respondent naturally submitted the application on the next working day and therefore the application has been filed within the period of five years. Therefore, the contention of the learned counsel appearing for the petitioner that the limitation has expired and the application of the 3rd respondent ought not to have been entertained beyond the period of limitation i.e., after five years cannot be countenanced. 21. The next submission of the learned counsel appearing for the petitioner that the civil court is seized of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontari Overseas Limited makes it clear that a civil court exercising its powers in terms of the CPC and determining in a passing-off action if one name is confusingly deceptive or similar to another name, is exercising a jurisdiction independent of the jurisdiction of Respondent No. 1 in respect of the registering of a company s name. The latter is a power vested in the central government in terms of Sections 20 and 22 of the Act. While it is true that the Respondent No. 1 cannot approach the case as it would in a trade mark dispute, it is nevertheless required to come to the conclusion whether the name of which the registration is sought or has been granted too nearly resembles the name of another company. Mr. Chandra is right in his contention that the powers of the central government under Section 22 of the Act are wider inasmuch as there is no need to examine whether there is a likelihood of deception or confusion. It is enough to examine if the name registered too nearly resembles another registered name. The Respondent No.2 has been able to show that both names too nearly resemble each other. 28. The Delhi High Court in Mondelez Foods Private Limited Vs. The Regional Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. 30. Therefore, this Court is of the view that when an application has been filed within the period of five years and the name Raymond resembled with the name of the third respondent, the order passed by the second respondent cannot be faulted. 31. It is yet another contention of the learned counsel appearing for the petitioner that since the application has now been filed on the Online portal, the same ought to have been filed on 12.09.2005 itself. It is relevant to note that it is not a mere submission just like e-tender, it is an application to be submitted before the authority within the relevant period of time. Even the application are filed on-line, it cannot be taken as filing since the entire office of the 2nd respondent was not functioning during Sunday, therefore it cannot be said that Limitation Act will not be applicable. Section 12(1) of the Limitation Act deals with exclusion of time in legal proceedings. Therefore, the last day being a holiday (Sunday), the filling of an application on the very next working day was in order and within the period of five years. The Judgment of the Hon'ble Supreme Court relied upon by the learned counsel appearing for the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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