ANAND BANSAL Vs. SHIVA TOBACCO COMPANY
INTELLECTUAL PROPERTY APPELLATE BOARD
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Z.S. Negi, Vice-Chairman -
(1.) THE applicant had filed C.O. Nos. 25-29 of 1997 before the Hon'ble High Court of Delhi under Sections 46, 47 and 107 of the Trade and Merchandise Marks Act, 1958 for rectification of registered trade marks in the name of respondent No. 1. pursuance of Section 100 of the Trade Marks Act, 1999, Act, 1999, which repealed the Trade and Merchandise Marks Act, 1958, (for brevity the repealing Act), the C.O. Nos. 25-29 of 1997 were transferred to the Intellectual Property Appellate Board (IPAB) and numbered as TRA/150-154/2004/TM/DEL.
(2.) The applicant has filed applications being M.P. Nos. 22-26/2006 under Order VI Rule 17 of the C.P.C. for amendments of the rectification application Nos. TRA/150-154/TM/DEL and also M.P. No. 27/2006 under Section 98 of the repealing Act for calling for records from the Registrar of Trade Marks in relation to transmission and assignment of trade mark. The applications for amendment and application for calling for records are on the following grounds:
That the applicant was the proprietor of M/s. Ansul Industries at the time of filing of the above application. During the pendency of the applications the proprietorship was converted into a partnership firm and as such this fact has to be incorporated in the applications and also to change the cause titles. That during the course of proceedings in Suit No. 330/2001 and much after filing the TRA/150-154/2004/TM/DEL (C O. Nos. 25-29/1997) and particularly from the list of dates presented by the respondent No. 1 during the arguments in FAO No. 228 of 2005 pending before the Hon'ble High Court of Delhi, the applicant came to know that the partners of the firm (respondent No. 1) namely, Shri Mahinder Kumar Bansal and Lala Shiv Prasad Agarwal died in 1980 and 1982 respectively, and as such, the partnership firm stood compulsorily dissolved at least in the year 1980 by virtue of Section 42 of the Partnership Act, 1932. That it is a settled law that an erstwhile partner of a dissolved firm is not entitled to any particular property or asset of that firm but he is entitled only to the value of his share in that firm. That despite the said settled provision of the law, the Registrar of Trade Marks vide alleged order dated 29.7.1988 (which alleged order came to the knowledge of the applicant during the proceedings in the above said suit and after filing of the present applications for rectification) allowed request in Form TM-24 dated 20.11.1986 and recorded that the subject matter registered trade mark to stand in the name of 'Rattan Lal Aggarwal and Rajinder Mohan Aggarwal trading as Shiva Tobacco Company'. That the order dated 29.7.1988 has been passed without any reason and without support of the necessary documents and the said order is against law and the Trade Marks Act. That the respondent No. 1 is not the same entity in whose favour the subject matter trade mark is registered. That the amendments proposed in the instant applications are necessary for the determination of real controversy between the parties and also to curb unnecessary future litigation. That the proposed amendments are necessary for the interest of justice and no prejudice shall be caused to the respondent No. 1 if the proposed amendments are allowed.
Respondent No. 1 filed his counter refuting the averments of the applicant. The matter came up for hearing on 3rd May, 2006.
(3.) THE learned Counsel for the applicant submitted that after the knowledge of death of partners of the M/s. Shiva Tobacco Company and transmission and assignment of trade mark, the applicant moved these applications and hence, the applications are within time. He also submitted that the order of transmission and assignment of trade mark passed by the Registrar of Trade Marks is without reason and support of necessary documents. THE certified copies of Form TM-24 dated 20.11.1986, order dated 29.7.1988 and other documents applied by him have not been furnished by the Trade Mark Registry. THE original records relating to transmission and assignment may be called from the Trade Mark Registry for verification of factual position. He further submitted that it is necessary to incorporate in the application that during the pendency of the applications, the proprietorship business of the applicant has been transformed into a partnership business and hence cause titles of rectification applications also require amendment.;
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