PRABHA SINGH JASWANT SINGH Vs. B MOHAMMED YOUSUFF
INTELLECTUAL PROPERTY APPELLATE BOARD
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S. Jagadeesan, Chairman -
(1.) THE Appellant filed this Appeal against the order of the Assistant Registrar of Trade Marks, Chennai, finding that the appellant has committed an offence under Section 107 of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
(2.) The Appellant filed the Suit C.S. No. 726/2004 on the file of the High Court of Madras, against the 1st respondent herein and others for the relief of permanent injunction restraining the first respondent or their representatives from claiming or offering for sale with the use of the trade mark MAHARAJA in relation to rice and other consequential reliefs. In the plaint filed by the appellant, they have claimed that they are the registered owners of the trade mark MAHARAJA SPECIAL the word mark MAHARAJA with a device of Air India Maharaja which is being used by the appellant. Their further plea is that the respondent and others who are the defendants in the suit adopted the mark MAHARAJA and the device of Maharaja knowing fully well that the Plaintiffs are the registered owners of the trade mark and its reputation. Since the appellants are the registered proprietors of the trade mark MAHARAJA SPECIAL word per-se without the device, their claim that they are the proprietors of the registered trade mark of the word MAHARAJA and also with the device of Maharaja is a false representation since the appellants claim the unregistered trade mark as a registered one, their commission falls under the mischief of Section 107 of the said Act and accordingly the respondent gave a complaint to the Trade Marks Registry. After full fledged enquiry, the Assistant Registrar of Trade Marks, under the impugned order, found that the appellant committed an offence under Section 107(1) of the said Act. Against the said order, the present appeal is filed by the appellant.
The learned Counsel for the appellant contended that the appellant did not make any false representation in claiming that their mark is a registered one. Admittedly, the mark MAHARAJA word per-se was registered and about the same there is no dispute. In the advertisement or in the label, the appellant made a reference to the registration number and printed the registered mark MAHARAJA SPECIAL. The device Maharaja is printed within a circle with the words "PULAO RICE, KING OF RICE". Hence, the separate circle within which the device has been printed cannot be taken as a part of the registered mark. Further, the contention of the learned Counsel for the appellant is that even assuming for the purpose of argument that the claim of the appellant before the High Court of Madras is to the effect that both the trade mark word per-se Maharaja and the device as registered one and any offence has been committed as contemplated under Section 107 of the Act, even then, the Registrar of Trade Marks has no jurisdiction to go into the question. This contention is based on the basis that the IPC and the Cr.P.C. prescribed the procedure to be followed when the parties to the proceeding made false statement and thereby commit perjury. The claim that the mark and the device are registered is made in the plaint before the High Court and as such, only the High Court can initiate proceedings for perjury either suo-motu or at the request of the respondent therein. Even otherwise, it is for the respondent to raise such a plea before the High Court and seek a finding and only thereafter, he can give any complaint as contemplated under the provision of the Trade Marks Act. Hence, the complaint before the Assistant Registrar of Trade Marks is pre-mature.
(3.) THE learned Counsel for the first respondent, on the contrary, contended that the claim made by the appellant in the plaint filed in the Civil Suit on the file of the High Court of Madras, clearly makes out a case that the appellant claimed the mark MAHARAJA word per-se as well as the device of Maharaja as their registered trade mark, whereas the registration is only in respect of mark word per-se. Hence, the respondent, bonafidely gave a complaint under Section 107 to the Assistant Registrar of Trade Marks, Chennai, for suitable action. THE claim of the appellant that the label used by him in which a reference is made to the registration number would only be in relation to the word mark MAHARAJA and it has nothing to do with the device inscribed in the circle. When both the word mark as well as the device are in the same label, a common man will think that both represent the registered trade mark and as such the claim of the appellant that he is the proprietor of the registered word mark as well as the device of Maharaja is incorrect and as such, the claim is in contravention of Section 107(1) of the Act. THE learned Assistant Registrar of Trade Marks also clearly found that the appellant has made a false claim in respect of the unregistered trade mark as that of the registered one. THEre is absolutely no merit in the appeal.;
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