INDIA ELECTRIC WORKS LTD Vs. REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) The India Electric Works Ltd., applied under Section 14, Trade Marks Act, 1940 to the Registrar of Trade Marks for registration of the word "India" as their trade mark of an electric fan. The Registrar refused the application on 26-9-1944. Pursuant to Section 76(1) of the Act the company presented an appeal to this Court against the Registrar's refusal. It was heard by McNair J. and by whom it was dismissed on 8-1-1945. The company now prefers this appeal against the learned Judge's dismissal. The Registrar of Trade Marks is the respondent. In form and substance it is an appeal from a single Judge to a Division Bench of this Court which, for convenience, I will call an inter-court appeal. Mr. S.B. Sinha, on behalf of the Registrar, raised a preliminary objection to the competency of the appeal on the grounds that an appeal to the High Court under Section 76(1) against the Registrar's refusal to register a trademark is final, and no further appeal, therefore, lies and, in any event, there is no right of appeal to a Division Bench from the decision given in an appeal under Section 76(1) by a single Judge of this Court. The right of appeal has been described as a "creature of statute" and, as observed by Bramwell C.J., as he then was, in Sandback Charity Trustees V/s. North Staffordshire Ry. Co. (1878) 3 Q.B.D. 1 (4). "An appeal does not exist in the nature of things. A right of appeal from any decision of any tribunal must be given by express enactment."

(2.) The right of appeal from one Judge of this Court to a Bench is under Clause 15 of its Letters Patent which, so far as material, provides that: ...an appeal shall He to the said High Court of Judicature at Fort William in Bengal from the Judgment...of one Judge of the said High Court...pursuant to Section 108, Government of India Act....

(3.) The remaining part of the clause relates to an appeal from the judgment on appeal (usually called a second appeal) of a single Judge of the Court from a decree or order made in exercise of appellate jurisdiction by a Court subordinate to the High Court. It is common ground that the latter part of the clause has no application in the present case.