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IN THE HIGH COURT AT CALCUTTA
KRISHNA RAO, J.
Visa International Ltd. & Anr. - Appellants
Versus
Visa International Service Association & Anr. - Respondents
IPDTMA No. 82 of 2023 With IA No. GA-COM 1 of 2024 & IPDTMA No. 83 of 2023 With IA No. GA-COM 1 of 2024 & IPDTMA No. 1 of 2024
Decided On : 02-08-2024
Jurisdiction - Trade Marks - Trade Marks Act, 1999 - Sections 3, 18 - The court interpreted the powers of Associate Managers under the Trade Marks Act, concluding they lack authority to issue quasi-judicial orders, leading to the quashing of the impugned orders.
Fact of the Case:
The appellants challenged orders passed by Associate Managers of Trade Marks, arguing they lacked the authority to issue such orders due to their contractual status and the absence of a designated post in the organizational structure.
Finding of the Court:
The court found that the Associate Managers were not authorized to pass quasi-judicial orders under the Trade Marks Act, as their powers were limited to administrative functions, leading to the quashing of the impugned orders.
Issues: Whether the Associate Managers of Trade Marks had the authority to pass quasi-judicial orders under the Trade Marks Act, 1999.
Ratio Decidendi: The court held that the Associate Managers, being appointed on a contractual basis and lacking a designated post, did not possess the requisite authority to issue quasi-judicial orders.
Result: The impugned orders are set aside and remanded to the Registrar for fresh consideration.
JUDGMENT :
Krishna Rao, J.
1. In all the three appeals, a similar question is raised by the Learned Counsel for the appellants whether the Associate Manager of Trademark is empowered to pass the impugned order, accordingly, all the three appeals have been taken up together for hearing.
2. IPDTMA 82 of 2023 is an appeal under Section 91 of the Trade Marks Act, 1999 against the order dated 16th September, 2023, passed by Shraman Chattopadhyay, Associate Manager of Trade Marks in an opposition filed under No. 236324 against the application No. 1363190 in Classes 06 and 35.
3. IPDTMA 83 of 2023 is an appeal under Section 91 of the Trade Marks Act, 1999 against the order dated 16th September, 2023, passed by Shraman Chattopadhyay, Associate Manager of Trade Marks in an opposition filed under No. 236325 against the application No. 1363190 in Classes 06 and 35.
4. IPDTMA 1 of 2024 is an appeal under Section 91 of the Trade Marks Act, 1999 against the order dated 6th October, 2023, passed by Saurabh Dubey, Associate Manager of Trade Marks in an opposition filed under No. 727989 against the application No. 1536319 for registration of the mark “HANDLOOM GARDEN” (Device) in Class 35.
5. Though the appellants have filed their respective appeals challenging the order passed by Associate Manger of Trade Marks on merits but the Learned Counsel for the appellants has argued the matter only on the ground that the Associate Managers of Trade Marks who have passed the impugned orders are neither authorized under law nor competent to pass such order.
6. Mr. Debnath Ghosh, Learned Advocate representing the appellants has handed over a copy of the order No. CGPDTM – 11036 (13)/1/2021-CGTMR/109 dated 13th April, 2022 wherein Shri Shraman Chattopadhyay was appointed as Hearing Officer in Trade Marks Registry, purely on contract basis upto the period of 31st March, 2023. In Clause (ix), it is mentioned that “no further continuation beyond the period of 31st March, 2023 can be claimed”.
By referring the said order, Learned Counsel for the appellants submits that the contractual period of Mr. Shraman Chattopadhyay was only upto on 31st March, 2023 but the impugned order was passed on 16th September, 2023 i.e. beyond the period of his appointment and thus the order cannot sustain and liable to be set aside as the said Associate Manager of Trade Marks was not having any jurisdiction to pass such order.
7. Mr. Ghosh relied upon the order No. CGPDTM–17031(11)/4/2021-CGTMR/29 dated 9th June, 2023 and submitted that by the said order, altogether six officials of the Trade Marks Registry have been assigned several powers and duties including hearing of show cause matters and authorized to dispose of trademark applications, conducting hearing and adjudicate other matters and pass speaking orders. He submits that in the said order, Associate Manager of the Trade Marks Registry have not been assigned any power or duties to conduct hearings and adjudicate matters and passed speaking orders.
8. Mr. Ghosh also handed over the organizational structure of the Trade Marks Registry and submitted that in the said organizational structure also there is no mention of the Post of Associate Manager of Trade Marks Registry.
9. Mr. Ghosh has also handed over the notification dated 17th February, 2011 wherein in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, the Trade Marks Registry has notified Recruitment Rules of several posts which shows the hierarchy of each post and in the said Recruitment Rules, there is no post of Associate Manager, Trade Marks is available.
10. Learned Counsel for the appellants relied upon the judgment in the case of Hindustan Zinc Limited (HZL) vs. Ajmer Vidyut Vitaran Nigam Limited reported in (2019) 17 SCC 82 and submitted that it is settled law that if there is an inherent lack of jurisdiction, the plea can be taken up at any stage and also in collateral proceedings.
11. Learned Counsel for the appellants relied upon t
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