S. Jagadessan, Chairman - (1.) THE petitioner filed these two petitions for rectification of the registered trade mark label 'CAMEL' bearing registration numbers 109120 and 439372 in class 34 in respect of safety matches and card board safety matches in the name of the first respondent. THE case of the petitioner is that one P. Iya Nadar set up a match factory in the year 1945 under the name and style of South Indian Lucifer Match Works for the manufacture of safety matches. He conceived the brand name of 'CAMEL' which was registered in his favour on 4.4.1945 under the Trade Marks Act, 1940 as TM 109120. Originally being a proprietory concern, it was converted into a partnership firm in the year 1955 under a deed of partnership dated 15.12.1955 by which the said P. Iya Nadar had taken his daughters Rajathiammal and Banumathi Raja, respondents 6 and 7 herein as partners. After formation of the partnership firm, a request in form TM-24 was made on 24.6.1959 for effecting an amendment to the Register and the same was carried out. On 12.3.1962 the partnership firm was dissolved and a deed of dissolution was entered into on 4.7.1962 and thereby the South Indian Lucifer Match Works once again became a proprietory concern of the founder P. Iya Nadar. A request in form TM-24 was duly made and accepted. THEreafter, the registered trade marks had been periodically renewed from time to time. In the year 1973 once again the said Iya Nadar converted the business into a partnership and subsequently on 15.10.1974 the 10th respondent herein was readmitted to the benefits of the partnership alongwith respondents 11 to 13 and the petitioner. THE petitioner and respondents 11 to 13 were all minors on the date of their induction to the benefit of the partnership firm. THE request in form TM-24 was made on 24.5.1975 for including all the new partners of the firm and the same was duly carried out. Once again the partnership firm was dissolved under a dissolution deed dated 31.8.1980 and a deed of settlement dated 1.10.1980 was executed by the said Iya Nadar in favour of the first respondent trust. Again a due request was made in form TM-24 on 12.6.1981 and the same was accepted by the Trade Mark Registry on 2.4.1984. During the process the said Iya Nadar died on 27.12.1982.
(2.) The second trade mark No. 439372 had been directly applied for in the name of the Trust and the mark is to be treated as an associated trade mark with the earlier registered mark bearing No. 109120 in Part A of the Register. Subsequently the first respondent trust stopped the manufacturing and trading activity in its name and instead started licensing the mark to various other entities including companies owned by the petitioner's father and the petitioners apart from several third parties as well. The first respondent trust also resumed manufacturing and trading activity after passage of several years. The petitioner was a minor at the time when he was inducted for the benefit of the partnership firm as well as the time of dissolution of the partnership firm and the settlement in favour of the first respondent trust. He attained majority only on 5.1.1992. The petitioner was not aware of any of the business matters as he was not involved in the family business due to his concentration on his education. In the year 1995 he took over the management of another family business M/s Janaki Packaging Pvt. Ltd. which was in the business of tin printing and can manufacturing. Though he became a Director in some of his father's match factory units in the year 1996 he was not involved in the match industry. However, he came to know through his father that litigation is pending before the Madras High Court as well as District Court, Virudhunagar between his father and the first respondent trust. Rajapalayam Industries and Commercial Syndicate Ltd., of which the petitioner is also a Director, filed the petition for rectification of the subject mark and for expunging the same which was transferred to this Appellate Board and Numbered as TRA No. 43/2003/TM/CH. The petitioner on independent legal advice now has filed this petition for rectification for the removal of the first respondent trust's name on the ground that the first respondent trust's ownership was entered in the Register without notice to the other partners and consequently direct the reinstatement of the petitioner and respondents 2 to 13 as the co-owners of the registered mark 'CAMEL' on the following grounds:- (i) When the form TM-24 was accepted by order dated 2.4.1984, no notice was served on the other partners and as such there is procedural irregularity in the entry of the Register while the dissolution of partnership and the settlement in favour of the first respondent trust were entered into. (ii) The Register had entered in the register the dissolution of the partnership without a valid deed of reconstitution or dissolution. Similarly, the settlement in favour of the first respondent is not enforceable as the trade mark 'CAMEL' became the property of the firm constituted by virtue of deed of partnership dated 1.4.1973 and 5.10.1974. (iii) The TM-24 ought not to have been acted upon in the absence of joint application by all the partners or in the alternative without any notice to those who have not signed the application. (iv) The petitioner being minor at the time of dissolution of the firm and the settlement in favour of the first respondent, the minor's interest could not have been dealt with without prior permission of the Court and as such the dissolution of the partnership thereby the petitioner's interest in the business had been deprived is quite invalid. (v) Even assuming the petitioner was represented by his father or mother as the guardian, it is to be tested whether they have got such authorisation or power to give up the rights of the petitioner. The petitioner also stated that the present petition is not barred by limitation and he came to know about the dissolution deed and the settlement in favour of the first respondent trust only in August, 2003 and thereafter he has filed this petition. The first and second respondents filed counter. They generally denied the allegations and further added that the founder P. Iya Nadar originally started the business as a proprietory concern and later converted it into a partnership firm and the partnership firm was dissolved and once again the partnership firm was reconstituted and dissolved. The settlement deed dated 1.10.1980 and the dissolution deed dated 31.8.1980 are with the full knowledge of the petitioner's father and as such it is not open now to the petitioner to challenge the same. Moreover, the petitioner after attaining majority in the year 1992 was fully aware about the transactions and he did not propose to challenge the action of his grand father immediately on attaining majority. Except the petitioner the other respondents do not challenge either the dissolution deed or the deed of settlement. In fact the father of the petitioner who filed TRA No. 43/2004 for removal of the trade mark from the Register did not dispute the dissolution deed and also the settlement deed in favour of the first respondent trust. Now the petitioner has challenged the deeds which were executed nearly 24 years back and as such the proceedings are barred by limitation. Further, the petitioner did not attribute any mala fide intention to his parents and as such everything done with the knowledge of his guardian regarding the dissolution deed of partnership must be taken as valid. The inordinate delay in initiating these proceedings clearly establishes that this is only an after thought on the part of the petitioner without any real grievance. The nature of dispute raised by the petitioner can be adjudicated only before a Civil Court and this Board cannot go into such details. The petitions are not maintainable under the provisions of the Act and the same are liable to be dismissed.
(3.) WE have heard the arguments of Shri S. Natarajan and Shri R. Rajaram learned counsel for the petitioner and Shri Madan for R1 and R2 on 13.10.2004 and 14.10.2004.;