SRI CHAMUNDEESWARI WEAVING AND TRADING CO PIE Vs. MYSORE SPINNING AND MANUFACTURING CO LTD

JUDGEMENT

(1.) THIS is an appeal against the judgment of Subrahmanyam, J. , declining to entertain an application filed by the appellant for rectification of the Trade Marks register by deleting the registered trade mark Nos. B. 1108, B. 62078 and B. 62080 form the Register of Trade Marks. The appeal involves the determination of the question whether this Court has jurisdiction to entertain the application. The first respondent, a public limited company, does business in piecegoods, cotton and artificial silk. Its office is at Bombay. On 10-6-1942 the first respondent applied to the Registrar of Trade Marks for registration of a design comprising the word "chamundi". The said mark was registered in relation to the piecegoods of all kinds sold by the first respondent. Four months thereafter it made two further applications for registration of two further marks containing the picture of Sri Chamundeswari in respect of goods known as tissue piecegoods, bedsheets, towels etc. They were duly registered by the Registrar of Trade Marks under S. 16 (1) of the Trade Marks Act, 1940. The appellant, a private limited company doing business in the manufacture and sale of handloom sarees at Kuttalam in Tanjore District applied on 30-12-1949 to the registrar of Trade Marks for registration of a label in relation to goods sold by him. That label also contained a distinctive design including therein a picture of Sri chamundeswari. The application met with opposition from the first respondent. The appellant thereupon filed an appreciation to these court under S. 46 (2) of the trade Marks Act for rectification of the Trade Marks Register in the manner stated above. The Trade Marks Act, 1940 was then in force. That enactment has been repealed since and the provisions thereof are re-enacted in the Trade and merchandise Marks Act, (Act XLIII of 1958 ). Under S. 136 of the latter enactment, the Indian Trade Act, 1940 stands repealed. But sub-sec (4) thereof states that notwithstanding such repeal, any legal proceeding pending in any court at the commencement of Act XLIII of 1958 may be continued in that court as if the Act had not been passed. If therefore this court had jurisdiction to entertain the appellant's application for rectification under the Trade Marks Act, 1940 relief could be granted to him notwithstanding the provisions of the Trade and merchandise Marks Act, 1958. Subrahmanyam, J. , held that this court would have no jurisdiction to entertain the application of the appellant under S. 46 of the trade Marks Act, 1940, as the subject-matter of the petition, namely, the removal of the trade mark registered on an application by a citizen of Bombay or Mysore had no relation to the State of Madras over which alone this court would have jurisdiction. The appellant challenges the correctness to the decision in this appeal.

(2.) SECTION 37 (1) of the Trade Marks Act, 1940 provokes that a registered trade mark may be taken off the register trade mark may be taken off the register in respect of any of the goods in respect of any of the goods in respect of which it is registered on the application of any person aggrieved, to a High Court or to the registrar. The grounds on which such a relief would be granted process on the principle that the registered trade mark was not properly registrable. Sec. 46 (1)states :

(3.) THIS section provides the machinery for the rectification of the Trade Marks register at the instance of a person aggrieved, that is a person other than the registered owner of the impugned trade mark. Option is given to the person aggrieved to file the application either before the Registrar or any High Court. Section 72 states :