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IN THE HIGH COURT OF BOMBAY
Kanade V.M., J.
Cott Beverage Inc., a Georgia Corporation .... Appellant.
Versus
Silvassa Bottling Company.... Respondent.
Appeal From Order No. 463 of 2003, decided on 7-10-2003.
Advocates appeared :
Virendra Tulzapurkar with R. Chitnis, i/b. Majumdar Co., for appellant.
Shyam Diwan with Manish Saurstri Ms. Priti Vyas i/b. Shantilal Co., for respondent.
or not. At the same time, it cannot be said that the procedure of registration of assignment is a mere formality. It appears from the various provisions which Court have enumerated herein- above that the Legislature has thought it fit to scrutinise every application for assignment and transmission keeping in view the various other Acts, including the import restrictions, foreign exchange, etc. as also any inter se disputes between the assignor and assignee and only thereafter if the Registrar is satisfied the said application for assignment would be registered. In Court s view, therefore, the view taken by the Madras High Court in the case of T.I. Muhammad Zummon Sahib that the registration is a mere formality cannot be accepted. In any case in the said judgment, the question which fell for consideration before the Court was regarding the transmission of registration and in the said case the transmission had acquired finality by virtue of personal law prevailing at that time in respect of the plaintiff. Lastly during the pendency of the suit before the judgment was delivered, registration of transmission was already granted in favour of the plaintiff. Therefore the said judgment will not be of any assistance to the appellant. However, in the subsequent judgment in the matter of Belighty Industries Association Court has held that the right to sue an unregistered proprietor is not in terms excluded but is affected by Section 11 of the Act of 1919. In the present case also, therefore, though the plaintiff is an unregistered assignee, it cannot be said that he is prevented from filing a suit during the pendency of the registration for sub-clause (2) of the same section clearly vests discretion with the Court either to admit the same in evidence or to reject the admissibility of the same in evidence. The trial Court, therefore, in Court s view, erred in holding that the document of assignment cannot be admitted in evidence as a proof of title to the trade marks. In Court s view, in view of sub-clause (2), the discretion is vested in the Court to examine as to whether it is admissible or not. How- ever, in Court s view, the registration of a Deed of Assignment would be one of the important factors which would have to be taken into consideration by the Court while deciding the question of grant of temporary injunction. Section 44 has been incorporated merely as a safeguard by the Legislature in order to avoid the multiplicity of the proceedings and also in order to ensure that the various other laws prevailing in the country are safeguarded while registering the assignment. Thus, the grant of registration of assignment or transmission cannot be said to be a mere formality and on a conjoint reading of the provisions it will be apparent that the Registrar has to be satisfied after going through the application which has to be filed in the prescribed form giving various particulars. In the present case, in Court s view, non-registration of the assignment will have to be considered as an important factor while deciding the question as to whether the plaintiff is entitled to the relief of temporary injunction during the pendency of the suit
2.The appellant-original plaintiff filed Special Civil Suit No. 1 of 2003 in the District Court at Silwassa against the respondent original defendant Silwassa Bottling Company. In the said suit the plaintiff claimed relief of permanent injunction restraining the respondent from infringing its trade mark and for other consequential reliefs.
3.Initially, on April 29, 2003 the District Court Silwassa passed an ex parte order of interim injunction against the respondent in terms of prayer Clauses (a) and (b) and the respondents were restrained from using the impugned trade mark. The said order was served on the respondent. The application for temporary injunction (Exhibit 5) was heard by the District Court and the same was dismissed by judgment and order dated June 27, 2003. The appellants have preferred an appeal from that order. Thereafter matter appeared on board on September 30, 2003 and thereafter it was adjourned on number of occasions and finally the matter was fixed for final disposal on October 8, 2003 at 2.45 p.m. and by consent of parties it was agreed that the matter would be finally decided at the admission stage itself.
4.The brief facts which are necessary for the purpose of deciding the present appeal are as under :
The appellants are the successor of Royal Crown Company Inc., a company incorporated in the USA in respect of the certain trademarks. The Royal Crown Company applied for obtaining the registration on July 8, 1970 of the trademark containing letters "RC" written in stylised manner in respect of non alcoholic beverages, syrups and extracts for making such beverages in Class 32 in Part B of the Register.
5.The plaintiffs predecessors also applied for the registration of the label mark containing the letters "RC" written in stylised manner. However, the said registration is pending and final permission is yet not granted. The plaintiffs in their plaint have admitted that the Royal Crown Company have plans to use "RC" as a trademark since 1970, however, the plans did not materialise on account of various reasons including the fact that several restrictions were imposed at that time by the Government of India. The case of the plaintiff is that in the year 1999 the Royal Crown Company made an attempt to revive their plans and arrangements were made with the Indian Companies for manufacturing and sale of "RC colas" in India.
6.The said Royal Crown Company by deed of assignment dated July 19, 2001 assigned various trademarks including the registered trademark in favour of the appellants. It is the case of the appellants that they came to know about the application preferred by one Sadraddin Masani for registration of a mark containing the letters "RC Cola" being Application No. 892398 and thereafter the present suit was filed. The respondents-original defendants filed their reply. They denied the allegations made by the plaintiffs. The defendants filed their written statement stating therein, inter alia, that the suit is not maintainable. It was averred that the plaintiffs had no locus standi to file the suit. It was further averred that the plaintiff has not produced any document of registration of assignment of the said trademark under section 44 of the Act and, therefore, the question of infringing of such trademark did not arise. It was submitted by the respondents that the plaintiffs had not explained delay and had obtained an ex parte order by suppressing the material facts and by committing fraud on the Court. It is further alleged that the certificate regarding the assignment of the trademark was not produced and therefore application was liable to be dismissed. It is the case of the defendant in the reply that they are manufacturing and marketing the softdrinks including the Cola drink under the mark "RC Cola" since 5-12-1999 and Soda under the mark "Royal Club Soda
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