S. Jagadeesan, Chairman - (1.) THE appellant has filed this appeal against the Order of the Assistant Registrar of Trade Marks, dated 11,7.1994, arising out of a suo-motu proceeding initiated by him under Section 56(4) of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as the Act), for rectification of the registered Trade Mark No. 415740 in class 83 in the name of Sri Madhukar L. Vadodaria, Shri Hiten J. Patel and Mrs. Indra A. Lakhani, trading as M/s. Electro Appliances, and in the matter of assignment thereof in the name of Shri Ramesh L. Vadodaria, vide entry dated 18.1.1994, on the Register of Trade Marks.
(2.) The case of the appellant is that the Trade Mark "CRYSTAL" registered under No. 415740, in respect of spoons, forks, kitchen knives and other table cutlery of all kinds included in Class 8 was registered in the name of S/Shri Madhukar L. Vadodaria, Hiten J. Patel and Mrs. Indira A. Lakhani, trading as M/s. Electro Appliances. The three partners executed a deed of assignment in his favour on 2.9.1992 and as per the terms of the assignment deed, the assignment is effective from 31.3.1992. Subsequent to the assignment deed, the partnership concern Electro Appliances seems to have undergone some changes by induction of two new partners and retirement of two partners viz., Shri Hiten J. Patel and Mrs. Indira A. Lakhani were retired. One of the newly inducted partners one Shri Hemang M. Patel, made a representation to the Registrar of Trade Marks, stating that the two partners retired on 21.7.1992 as per the partnership retirement deed and the partnership concern had undergone a change by the induction of Shri Hemang J. Patel and Damji L. Vadodaria with effect from 1.4.1992, in the place of the retired partners. Subsequent to the change in the partnership, the retired partners, alongwith one other partner had executed a deed of assignment in favour of the appellant and the assignment deed being executed by the persons who are no longer the partners of the firm, the assignment deed, in favour of the appellant is invalid. Consequently, the appellant cannot derive any right from out of the said assignment deed. However, on the basis of the assignment deed, the Registrar of Trade Marks has entered the name of the appellant as the assignee of the Trade Mark in respect of the products which the firm is entitled to manufacture. On the basis of the said representation of the said Shri Hemang J. Patel, the Registrar of Trade Marks initiated proceedings under Section 56(4) of the Act, and passed the impugned Order finding that the assignment deed dated 2.9.1992 had not been executed by all the partners or the registered proprietors of the firm and hence is not a valid document and that the entry in the Register indicates the extent of assignment and what has been revealed in the assignment deed dated 2.9.1992, and that the mode of assignment effected by assignment dated 2.9.1992 are contrary to the provisions of the Act and directed expunging of the entry dated 18.1.1994, in respect of the assignment of the registered trade Mark No. 415740 in favour of the appellant. Aggrieved by the said Order, the appellant preferred the Appeal No. 6/1994, on the file of the High Court of Gujarat at Ahmedabad and the same was transferred to this Board pursuant to Section 100 of the Trade Marks Act, 1999, and numbered as TA/250/2004/TM/AMD.
(3.) THE learned counsel for the appellant Shri Yagnesh J. Trivedi raised the following contentions: 1. THE Registrar of Trade Marks had initiated the proceedings for rectification only on the basis of the representation sent by Shri Hemang M. Patel and hence, it cannot be construed as the proceedings initiated suo-motu by the Registrar. 2. When one of the Partners of the firm made a representation to the Registrar for rectification raising the plea that the assignment in favour of the appellant is not valid, the said partner ought to have filed an application as prescribed under Section 56(1) of the Act. In the absence of the application in the prescribed form, the Registrar ought not to have initiated any proceeding for rectification. 3. THE Registrar has totally failed to consider that the assignment deed in favour of the appellant, though executed on 2.9.1992, by the three partners of the firm, stating that the assignment is with retrospective effect from 31.3.1992, ; during which period, the assignors were the partners. 4. THE Deed of Retirement as well as the reconstitution of the Partnership firm were executed only on 3.9.1992, a day subsequent to the Deed of Assignment and both the documents were ante-dated, which is clear from the date mentioned by one of the witnesses in the Deed of Reconstitution of the firm, viz., 3.9.1992.;