Shree Rang Misra, J. - (1.) This appeal arises out of a judgment and order dated 16th May 1988 passed by the Hon'ble Justice Prabir Kumar Majumdar dismissing an application for rectification filed by India's Hobby Centre (P.) Limited (hereinafter referred to as "the petitioner/appellant") for removal of a trade mark "Sub-zero" for Ice Cream registered in favour of the Kwality Ice Cream Limited (hereinafter referred to as "the respondent" in the present appeal). The learned Single Judge in his judgment has extensively narrated the pleadings of the parties including the grounds on which the rectification was sought by the appellant. As such we do not think necessary to make mention of the pleadings of the parties in extenso. However, the material and necessary facts for the disposal of the appeal are as follows:- The appellant was in possession of No. 1 A, Russel Street, Calcutta entered into an agreement of a well known manufacturer of Ice Cream Kwality on 27th June 1979 whereby the appellant agreed to stock, display and sell respondent's Ice Cream at appellant's parlour to be opened at the appellant's premises and in pursuance of the said agreement the parlour was to be named as Sub-zero Ice Cream Parlour" of the appellant. The said parlour was opened in September 1979 and in accordance with the agreement there was a clause of termination of the agreement after 12 months by the respondent giving six months notice. Simultaneously with the agreement, a letter was also written by the respondent where it was stated that the name Sub-zero Ice Cream Parlour would be confined to the parlour of the appellant alone. Contrary to this the respondent has used Sub-zero in some other parlours and objection of the appellant/respondent was to remove the same. A dispute arose between the parties. It was referred to an arbitration and a consent award was passed on 18th March 1982. As a result of the award the respondent was restrained from opening any parlour in the vicinity of 1km. The agreement between the parties was terminated by the respondent on 22nd April, 1982 and the respondent filed a suit as Suit No. 802 of 1982. Another suit was filed by the appellant covering the dispute in question in 1984, and both the suits are pending. The appellant came to know in 1985, that on 5th July, 1980 during the subsistence of an agreement between the appellant and the respondent the respondent made an application for registration of the trade mark Sub-zero in class 30 for the Ice Creams, The said application was advertised in the Trade Mark Journal in which the respondent claimed as proprietor of the mark sub-zero and the appellant was not aware of the said application and it had no opportunity to file an objection and thus the trade mark was registered in favour of the respondent with effect from 7th July, 1980 The appellant accordingly on 24th September, 1985 filed an application for rectification of the mark in question on various grounds viz., fraud, misrepresentation and concealment to material facts. The respondent filed an affidavit-in-opposition denying the assertion of the appellant that the registration was obtained by fraud and misrepresentation. It was stated by the respondent that there was no substance in the application for rectification and it is liable to be rejected. The other averment in the application for rectification was also denied. The appellant was only permitted to use Sub-zero trade mark during the continuance of the agreement till 31st October, 1982. Appellant was only an agent of the respondent and as regards the arbitration proceedings it ended into a compromise. Other pleas were also taken on behalf of the respondent. Learned single Judge after having considered the arguments of the counsel for the parties and after perusing the pleadings and taking into consideration the material evidence came to the conclusion that the appellant has failed to establish the allegation of fraud. He has further held that the mere use of the word fraud is not enough to prove fraud. While considering the question that the agreement dated 27th June, 1979, was not disclosed learned Single Judge observed as follows:- "Even if the said agreement dated 27th June, 1979 was disclosed before the Registration that would not have made any difference in the matter for the reason, that the said agreement dated 27th June, 1979 is in respect of a Mark associated with the business place and not with any of the petitioner's products. It is an admitted position that according to the said agreement the respondent used to supply its own Ice Cream Products for the purpose of sale by the petitioner from its place of business known as Sub-zero Ice Cream Parlour. The Mark Sub-zero which has been mentioned in the said agreement related to the petitioners place of business that is Sub-zero Ice Cream Parlour. The Mark Sub-zero which has been registered in respect of the respondent's products is a mark associated with the Ice Cream prepared by the respondent. Therefore, to my mind, there is no question of fraud and even if such agreement have been disclosed by the respondent at the time of obtaining the registration of its Mark it would not have revealed by element of fraud."
(2.) As regards the next question that the trade mark was not distinctive on the commencement of the proceedings and further plea that the respondent was not to use exclusively the mark in question. It has been held by the learned Single Judge that the appellant had not been able to and cannot establish the proprietorship of the Ice Cream products. He has further observed as follows:- "It will appear from the said agreement dated 27th June 1979, that the packing materials and stationery goods for the sale of ice cream shall bear the name Sub-zero Ice Cream Products Therefore, the people buying ice cream from the said parlour are under the impression that they are having Kwality's Subzero Ice Cream."
(3.) Accordingly the learned Single Judge was not satisfied that any fraud was played in obtaining the registration of the trade mark and the appellant has failed to prove his case. Accordingly the application for rectification filed by the appellant was rejected. Hence this appeal. We have heard the learned counsel for the appellant Shri Sudipta Sarkar appearing as Sr. counsel and Shri Shibdas Banerjee for the appellant and Shri Gautam Chakraborty appearing for the respondent associated by Shri Debal Banerjee at length.;