- (1.) THE applicant herein are seeking the removal from the Register of the Trade Mark PACHRANGA under No.1340594 in Class 29. The grounds on which the cancellation petition has been filed are briefly summarised as follows: i) The applicant claim to be the proprietor of the trade name M/s Pachranga International in relation to pickles and allied products since 2002 and since 1983 through its predecessor. ii) This trade name/mark has attained goodwill and reputation being first prior adopter of the said trade name/trade mark. iii). A partnership firm styled M/s Pachranga International was constituted and established in 1983 with Shri Asanand Dhingra, Chandra Mohan Dhingra and Rajinder Kumar Dhingra as partners. In fact, Chander Mohan and Rajinder Kumar are sons of Shri Asa nand Dhingra. M/s Pachranga International adopted the trade mark PIP in 1983 and have continuously used the same. To acquire statutory protection an application for registration of the trade mark PIP was filed on 17.07.1991 under 554681 which was later duly registered and is still valid and subsisting. iv). By a partnership deed dated 1st April, 1999 it was agreed that in case of dissolution of M/s Pachranga International, both the sons of Asanand Dhingra shall be entitled to do independent business using the firms registered trade mark PIP in the following manner. : a. Chander Mohan Dhingra will use the trading name M/s Pachranga International (Chander Group) b. Shri Rajinder Kumar Dhingra will use the trading name Pachranga International (Ranjinder Group)" v) During the financial year 2001-02, M/s Pachranga International became defunct and was dissolved. vi) In terms of Partnership Deed dated 1st, April, 1999, Chander Mohan Dhingra formed another partnership firm on 10th April, 2002 styled "M/s Pachranga International (Chander Group)" along with his two sons Shri Rajesh Kumar Dhingra and Amit Kumar Dhingra. Shri Asanand Dhingra died on 1st July, 2003. The applicants business and goods have acquired tremendous reputation in the market. vii) They further submit Shri Rajinder Kumar Dhingra had abandoned/waived his right to the trade mark PIP and Pachranga International due to continuous non -use. On 16th February, 2006, the applicant was served with a legal notice by the respondent that they are the registered proprietor of the trade mark Pachranga International under No1340549 in class 29 and called upon the petitioner/ applicant herein to cease and desist from using the trade mark Pachranga International. Immediately, thereupon the applicant filed a suit being CS(OS) 336/2006 before the Hon'ble Delhi High Court seeking the relief of permanent injunction to restrain the respondent from using the trade mark Pachranga International and PIP. viii) In March, 2006, the respondent filed its written statement in respect of the above mentioned Suit wherein he pleaded that Shri Asanand Dhingra (father of both applicant & respondent) had expelled Shri Chander Mohan Dhingra from M/s Pachranga International vide letter dated 15th February, 2001 the receipt of which was denied by the applicant. ix). The respondent Shri Rajinder Kumar Dhingra by virtue of Power of Attorney dated 13th July, 1985 assigned and transferred the impugned trade mark on 26th March, 2002 to Smt. Sharda Dhingra wife and Co-director of the respondent herein. The applicant state this assignment is illegal and void as M/s Pachranga International was dissolved and became defunct prior to the alleged assignment. It is the case of the applicant that the General Power of Attorney(GPA) dated 13.07.1985 has become defective and non -est in the eyes of law once the partnership firm M/s Pachranga International was dissolved. The element of trust and fiduciary relationship between Rajinder Kumar Dhingra and Chander Mohan Dhingra was lost long prior to 26th March, 2002 and therefore, Shri Rajinder Kumar Dhingra was not authorized to act on behalf of Shri Chander Mohan Dhingra. Further, this GPA dated 13.07.1985 nowhere authorized Shri Rajinder Kumar Dhingra to sell or transfer the trade mark or trade name of the firm. Thus, Shri Rajinder Kumar Dhingra acted on his own without first obtaining the consent of other partners. In fact the alleged assignment was effected surreptitiously and the entire transaction was concealed from Shri Chander Mohan Dhingra and therefore the respondents are guilty of serious mis -conduct as they had acted fraudulently and dishonestly. The annual sales turn over of M/s Pachranga International since 1991-92 was always in excess of Rs. 1 crore and for the year 1999 -2000, it was Rs.1.76 crores. Yet Shri Rajinder Kumar Dhingra fraudulently and dishonestly assigned the valuable goodwill, labels and registered trade mark of the firm for a petty sum of Rs. 50,000 to his own wife which is a sham and illegal transaction. x) In his cross -examination conducted on 12.02.2003; 18.02.2003 and 24.02.2003 during the proceedings in the pending Civil Suit. Shri Rajinder Kumar Dhingra had admitted that the trade mark PIP registered under No.554681; trading name and style "M/s Pachranga International" and goodwill thereof are the exclusive property of the firm M/s Pachranga International. xi) Smt. Sharda Dhingra trading as M/s Gazab India has applied for registration of the trade mark PACHRANGA PIP vide application No.1022539, which has been opposed by applicant herein. In the said Notice of Opposition the applicant pleaded proprietary rights in the trade mark PIP registered under No.554681. Smt. Sharda Dhingra filed her counter -statement thereto on 29.11.2004 in Form TM -6, wherein she nowhere pleaded the alleged assignment. xii) Accordingly, the respondent has no right or liberty to use the impugned trade mark in relation to the impugned goods. The respondents are representing to the trade and public that the goods bearing the impugned mark are coming from the same source as the applicant herein. The respondent had obtained the impugned registration by fraud and untrue claims of proprietorship concealing material facts and so the impugned registration is contrary to law and liable to be revoked, removed and expunged from the register. The applicant will be substantially damaged if the impugned trade mark is allowed to continue to remain in the Register and therefore are person aggrieved' within the meaning of the Act. It is, therefore, prayed that the entry relating to the impugned mark under o.1340549 in class 29 be expunged /rectified from the Register.
(2.) THE case of the respondent registered proprietor is summarised below :- a. the present rectification application is without any merit and filed only to harass the respondent. The applicant is fully aware of the application in question and its registration from the beginning. In fact, the applicant/petitioner has not come with a clean hand as he has suppressed material facts relating to the case. b. The respondent company was set up in July, 2001. The applicant has deliberately concealed the fact that Shri Chander Mohan Dhingra was expelled form partnership firm Pachranga International by his co -partners on account of unethical and anti -partnership activities which caused irreparable loss and injury to the firm. In fact Pachranga International was established as a partnership firm by Shri Asanand Dhingra and the respondent herein by a virtue of a Partnership Deed in 1983. Shri Chander Mohan Dhingra the applicant herein joined said partnership firm later in 1984. c. On 13.07.1985, late Shri Asanand Dhingra and Shri Chander Mohan Dhingra partners of PACHRANGA INTERNATIONAL executed a General Power of Attorney in favour of the respondent Shri Rajinder Kumar Dhingra authorising him to do all acts on their behalf. This power of attorney was registered. d. Minor changes were made in the Partnership Deed on 1st April, 1999 which included inter-alia the following clause : i) if any partner or partners during the pendency of the partnership commits or is guilty of breach of its duties or infringes or contravenes, or violates any terms of the partnership, the majority of such partners have a right to expel such partners by sending him a notice in writing and remaining partners shall be at liberty to form a fresh partnership to carry on the same business. It was also provided that there shall be no goodwill of the firm for the 5 years and thereafter the same will be determined by the partners. It was also provided if for any reason, the Asanand Dhingra retires from the firm he will not be entitled to get any goodwill of the firm. ii) Another clause was if there is a dissolution of the firm the goodwill be shared equally by the parties other than Asanand Dhingra and both parties are at liberty to use Pachranga International and use the registered trade mark PIP which will read as : "Pachranga International (Rajinder Group)" AND "Pachranga International (Chander Group)" In case of any dispute the matter will be settled in accordance with the Arbitration Act , 1940. e) The applicant herein Shri Chander Mohan Dhingra in contravention of covenants of the partnership deed dated 1st, April, 1999 created and promoted a company Pachranga Syndicate Pvt. Ltd. and started manufacturing and marketing pickles. Further, the applicant lured and shifted workers of the partnership to his company. Thus, he started acting as a competitor and caused huge monetary loss. Despite repeated request by his father and the respondent, he did not cease his illegal act and therefore was expelled from the partnership due to his obstructive attitude to the firm. f) On 26th March, 2002 the partnership firm M/s Pachranga International assigned the trade mark, trade name and label in favour of Smt. Sharada Dhingra one of the Directors of the respondent company. The assignment deed was duly registered and was for lawful consideration. Thereupon all manufacturing activities of the partnership firm Pachranga International were stopped. The premises belonged to Shri Asanand Dhingra who had leased it to the firm. He locked the premises and removed all stocks and machines which were forcibly taken by Shri Chander Mohan Dhingra. g.The applicant has no manufacturing unit and it is not manufacturing the said impugned goods. He is getting the goods manufactured from others and only packaging the same. The applicant are furnishing a false address on the label where no manufacturing and commercial activity is being carried out. h) The applicant is still cheating the public by furnishing the address of the erstwhile firm on the label. It is denied that M/s Pachranga International had become defunct prior to the execution of the assignment deed as alleged.
(3.) REJOINDER of the applicant The applicant state that the respondent cannot be the proprietor of the impugned mark. The alleged assignment deed dated 26th March, 2002, even if its is admitted to be valid and legal (while being denied), does not confer any right and title to the respondent on the impugned trade mark or its registration. The alleged assignment deed was executed by Shri Rajinder Kumar Dhingra acting on behalf of Pachranga International and Smt. Sharda Dhingra is the wife of Rajinder Kumar Dhingra. The alleged assignment deed was never executed in as much as there is no document & record conveying the proprietary right on the impugned trade mark. Further, the applicant denies having received the alleged expulsion letter from the Partnership firm by the co -partners of the firm. Without prejudice to this contention, the alleged expulsion is also bad in law, malafide and without any jurisdiction. No opportunity was given to the applicant to meet the allegation leveled against them. Further, the GPA given by Deed dated 13th July, 1985 in favour of Shri Rajinder Kumar Dhingra, the respondent herein was to run the business and not to throw out remaining partners. M/s Pachrang Syndicate Pvt. Ltd was incorporated way back in 1994 much prior to the execution of the Partnership Deed dated 1st April, 1999. The applicant also denied acting as a competitor to the erstwhile partnership firm. The applicant is suffering great hardship and under the facts and circumstances of the case, the Board should rectify the impugned registration. The mater was listed before us on 15.02.2013. Both the counsel were present . We heard the detailed arguments and gone through the pleadings. The following authorities were relied on by the applicant : 1."Smt. Bhatori Vs Smt. Tam Piari" - AIR 1996 SC 2754 Narration of the facts clearly indicates that the respondent No.2 Patwari having had Power of Attorney in his favour from the appellant obviously had played fraud upon the appellant and got her lands transferred in the name of his wife. The fraud played had produced damage to the appellant depriving her of the valuable property denuding right, title and interest to claim compensation in respect of her lands acquired by the Government. Having been defrauded, she is entitled to lay the suit for declaration of title and other reliefs in the suit. It would, therefore, be a clear case of fraud played by the respondent upon the appellant. The Courts below have committed grave error by not appreciating the fraud played by the respondent in proper perspective. 2. "Patel Natwarlal Rupji Vs Shri Kondh Group Kheti Vishayak and another" - AIR 1996 SCC 1088 Transfer of Property Act (4 of 1882),S.53-A -Part performance of contract - Attachment of land for recovery of debt - Execution of agreement to sell said land to third party subsequently - Payment of part of consideration - Possession given to third party - Passing of decree and proclamation of sale of attached land thereafter - Right of third party under S.53-A - - Evidence establishing that agreement of sale was sham contract -Fraudulently made in order to defeat right of decree holder to proceed against property - Right under S. 53 -A cannot be used for declaration that suit land was not liable to attachment. 3. "Harmohan Singh Vs Gurbax Singh " - 2001 PTC 629(Del) "Assignment of trade mark - Where there is dissolution of a firm, the defendant had surrendered all his rights and interest in the firm in favour of the plaintiff, such relinquishment and surrender includes trade mark of partnership also disentitling the defendant to use the mark after dissolution and the plaintiff is entitled to grant of injunction against the defendant from using the trade mark - CPC, 1908, Order 39 Rules 1 & 2." "As per the aforesaid para in the Dissolution deed, the defendant had relinquished and surrendered his rights and interest in the various assets of the partnership firm in favour of the plaintiff. These assets and rights include goodwill and any other right(s) whatsoever'. By this surrender, the plaintiff has given up right to hold the aforesaid properties absolutely in future'. Goodwill and all other rights would naturally include right in the trade mark of the partnership. In view of Clause 2 in the Dissolution Deed, there is no force in the contention of the defendant that only name of the partnership firm was given and not the trade mark. For the same reason, I do not consider any merit in the argument of the defendant that for trade mark no consideration was given, and therefore, defendant had right to use the trade mark. It was sought to be argued by learned counsel for the defendant that if there was no intention to pass on trade mark to the plaintiff, the defendant would have executed assignment deed also. I am not impressed. Admittedly the trade mark stands applied in the name of both persons as partners of the firm. It was partnership property. When by Dissolution deed, rights and liabilities of the parties are determined and defendant agrees to give the goodwill and all other rights in the said partnership firm to the plaintiff, it will include the right in the trade mark of the partnership firm as well. Between the two partners, there may not be necessity to execute a separate assignment deed once the Dissolution Deed laying down rights and obligation of the erstwhile parties was reduced into writing. Even if there was necessity, on the strength of such a Dissolution Deed, the plaintiff has right to compel the defendant to execute the said assignment deed also. In fact the Dissolution Deed itself would become an assignment under the law as held in the case of Bharat Tobacc Mfg. Co & Ors. Vs Nav Bharat Tobacco Mfg. Co. etc., 1984 PTC 76. 4. "M/s Modi Threads Limited Vs M/s Som Soot Dola Factory and another " - AIR 1991 DELHI -4. Even though the application of the plaintiff for getting transfer of the registered trade mark in its name in the office of the Registrar was still pending for consideration by the Registrar of the Trade Marks, it would not debar him to protect the violation of its trade mark at the hands of unscrupulous persons by filing an action in Court of law for injunction and, therefore, the defendants could not be allowed to make use of said trade mark in order to get themselves illegally enriched earning upon the reputation built up qua that trademark by the predecessor -in -interest of the plaintiff.;