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TMI Blog2015 (5) TMI 1262X X X X Extracts X X X X X X X X Extracts X X X X ..... HAMAN" from its existing name, has been dismissed. We have heard learned counsel for the parties and have gone through the impugned order passed by the learned Single Judge as well as the order passed by respondent No.2. The brief facts of the case are that respondent No.4, namely M/s Vardhaman Fertilizers and Seeds Private Limited, is engaged in business of manufacturing and marketing Class I fertilizers, water soluble fertilizers and micro nutrients. The Company was/is selling its products under the brand name and trade mark "VARDHAMAN" since the year 1991. The respondent Company was incorporated with the Registrar of Companies on 09.07.1987 with the name "M/s Vardhaman Fertilizers and Seeds Private Limited". The respondent Company got registered its Trade Mark "VARDHAMAN" with the Trade Mark Registry on 08.02.2007 and the same is valid for a period of 10 years upto 08.02.2017. The appellant Company got itself incorporated with the Registrar of Companies on 29.05.2009 and started its business of manufacturing and marketing Class I fertilizers, water soluble fertilizers and micro nutrients, i.e. similar to the business of the respondent Company, under the brand name and trade ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, did not record a finding that the act of the appellant Company in using the registered trade mark of the respondent Company, was/is undesirable. Without recording such finding, respondent No.2 could not pass the order under Section 22 of the Companies Act. (iv) That there are 401 different Companies registered under the Companies Act with the Registrar of Companies with the name "VARDHAMAN", therefore, the appellant Company alone should not have been directed by respondent No.2 to delete the word "VARDHAMAN" from its existing name. After hearing the arguments of learned counsel for the parties, we do not find any substance in any of the contentions raised by learned counsel for the appellant Company. In this case, it is an undisputed factual position that the respondent Company got itself incorporated under the Companies Act on 09.07.1987 with the name "M/s Vardhaman Fertilizers and Seeds Private Limited", whereas the appellant Company got itself incorporated under the Companies Act on 29.05.2009 with the name "M/s Vardhaman Crop Nutrients Private Limited". Both the Companies are dealing in the same business, i.e. manufacturing and marketing Class I fertilizers, water solubl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m using its registered trade name and mark is a different remedy available to the aggrieved company. The learned Single Judge, while relying upon a judgment of the Karnataka High Court in Surya Elevators and Escalators India Private Limited, Bangalore Vs. Union of India and others, 2012 (6) Kant LJ 225, has rightly held that remedy under Section 22 of the Companies Act was not barred once the respondent Company had taken remedy of common civil law. Both these remedies, one under Section 22 of the Companies Act, and the other under the common civil law, operate in different fields. Under Section 22 of the Companies Act, the Central Government has no jurisdiction to grant injunction against the use of an undesirable name by a company, whereas in a suit for permanent injunction the Court cannot pass an order as could be passed under Section 22 of the Companies Act by the Central Government, directing the offending company to delete the registered trade mark of the previously registered company from its name. The jurisdiction of the Central Government under Sections 20 and 22 of the Companies Act and the jurisdiction of the Civil Court operate in two different fields. No contrary judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a previously registered existing company, or having a registered trade mark, may be deemed to be undesirable by the Central Government. In our opinion, if any one of these two facts are established, i.e. (i) that name of the new company to be registered is identical with, or too nearly resembles, the name by which a company in existence has been previously registered; and (ii) if the previously registered company is having a registered trade mark in the same name, in that situation, it will be deemed to be undesirable by the Central Government to register the said company in the same name. Further, in that situation, a right has been given to the aggrieved company to move an application before the Central Government seeking direction to the newly registered company to delete the same name from its name. The limitation prescribed is that no such application shall be considered after five years of coming to notice of registration of the new company. Further, Section 33 of the Trade Marks Act lays down the effect of acquiescence. Sub-section (1) of this section provides as under : "Where the proprietor of an earlier trade mark has acquiesced for a continuous period of five year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Companies Act with the Registrar of Companies with the name "VARDHAMAN", learned counsel for the appellants has drawn our attention to the list of 401 Companies, annexed with the writ petition as Annexure P-22. This contention is also devoid of any merit, because out of this list, only the appellant and the respondent Company are engaged in the business of manufacturing and marketing Class I fertilizers, water soluble fertilizers and micro nutrients. They are operating in the same field and business. The other companies are using the word "VARDHAMAN", but are engaged in different businesses. Even otherwise, it is for the already registered company to raise grouse to the Central Government under Section 22 of the Companies Act. If the newly registered company is infringing the rights of the already registered company under the Trade Marks Act, the later can approach the Central Government under Section 22 of the Companies Act. In the present case, the respondent Company had filed application under Section 22 of the Companies Act only against the appellant Company. On that application, respondent No.2, after satisfying himself that registration of the appellant Company is un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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