GAJENDRA KALYANBHAI SHETH Vs. DIPAKBHAI NATWARLAL CONTRACTOR & ANOTHER

JUDGEMENT

(1.) APPLICATION is for removal of registered trade METRO under No.1354281 in Class 16. The case of the applicant and the grounds for removal are briefly as follows: -

(2.) THE case of the respondent/registered proprietor is as follows: -

(3.) THE applicants have filed a reply to the counter statement of the respondent. He has denied in toto all the contentions raised on by the respondent. The applicant submits that the partnership firm was started with three partners - (a) Shobhnaben (b) Gajendrabhai & (c) Dipakbhai (the respondent herein). Shobhnaben retired from the partnership firm on 31st October 1979. The remaining two partners (applicants and the respondent) continued the business and using the trade mark METRO and METRO CARD AGENCY as Joint Property. On 1st October, 1979 Gajendrabhai Sheth also retired and on the same day his wife replaced him as a partner in METRO CARD AGENCY. Thus the business of the firm remains with the family members of both partners. Due to huge success both partners in 1992 decided to start a sister concern METRO CARD GALLERY with the applicant and the wife of the respondent Bharatiben Contractor for expansion of business and set up an office at C.G. Road also to develop new markets. The respondent was present at the inauguration. He was a party to the Joint venture of the family business and the trade mark METRO was jointly used by both parties. Even though the partners have retired, both family members were doing their business with each other. This material position has been suppressed by the respondent. The applicant never suspected the respondent would secure registration of the trade mark METRO behind their back and had blind faith in respondent's honesty and the registration of the impugned mark has been secured by fraud. It was only after the respondent had issued Legal Notice on 27th February, 2010 the shell shocked applicant realized that the registration of the impugned mark has been obtained illegally of what is a jointly owned trade mark METRO. The City Civil Court, Ahmedbad after hearing both the parties dismissed the Notice of Motion. The respondent went to the Hon' ble Gujarat High Court. Thereafter, there was settlement talk which failed compelling the applicant to move for rectification. The respondent has misguided the Registrar and secured the registration of impugned illegally. The user claimed by the respondent is false.It was also decided not to use the trade name METRO CARD AGENCY and there is signature of the respondent as a witness. In the aforesaid circumstance, the impugned mark should be removed from the Register.