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High Court Of Delhi
RADHA KISHAN KHANDELWAL - Appellant
Versus
ASSISTANT REGISTRAR OF TRADE MARKS NEW DELHI - Respondent
Decided On : 04/15/1969
TRADE MARK - REGISTRATION - ALTERATION OF REGISTERED PROPRIETORS - NOTICE AND HEARING - NECESSITY - SECTION 57 OF THE TRADE AND MERCHANDISE MARKS ACT, 1958 - RULES 99 AND 71 OF THE TRADE AND MERCHANDISE MARKS RULES, 1959.
Fact of the Case:
The appellant, one of the registered proprietors of a trade mark, challenged the Registrar's orders removing his name from the register and substituting the names of other individuals. The appellant claimed he was not given notice or an opportunity to be heard before the alteration was made.
Finding of the Court:
The court held that the Registrar's orders were invalid because the appellant was not given notice or an opportunity to be heard before his name was removed from the register. The court found that the alteration of the register of trade marks was not a purely administrative proceeding but rather a quasi-judicial function performed by the Registrar, requiring notice and a hearing to the affected party.
Issues: 1. Whether the Registrar's orders removing the appellant's name from the register of trade marks were valid. 2. Whether the alteration of the register of trade marks was a purely administrative proceeding or a quasi-judicial function.
Ratio Decidendi: 1. The court held that the Registrar's orders were invalid because the appellant was not given notice or an opportunity to be heard before his name was removed from the register. The court found that the alteration of the register of trade marks was not a purely administrative proceeding but rather a quasi-judicial function performed by the Registrar, requiring notice and a hearing to the affected party. 2. The court found that the alteration of the register of trade marks was not a purely administrative proceeding but rather a quasi-judicial function performed by the Registrar, requiring notice and a hearing to the affected party. The court relied on the principle that no person should be deprived of their property without an opportunity to be heard, even in the absence of express statutory provisions requiring notice and a hearing.
Final Decision: The court allowed both appeals and set aside the orders removing the appellant's name from the register of trade marks. However, the court clarified that its opinion on the merits of the appellant's claim should not influence the Registrar's independent decision if the parties concerned moved him to do so.
( 1 ) THIS order will dispose of two appeals viz. F. A. O. (T and M) 186 of 1968 and F. A. O. (T and M) 187 of 1968 both of which are directed against the orders made by the Registrar of Trade Marks and are between the same respondents.
( 2 ) UNDER section 2 (q) of the Trade and Merchandise Marks Acts, 1958 (hereinafter REFERRED TO the Act) a registered proprietor in relation to a trade mark means a person for the time being entered in the register as proprietor of the trade mark. Under section 24 (2) of the Act where more than one person are registered as joint proprietors of the trade mark they are to be treated to be a single person. Under section 25 the registration of a trade mark ensures for a period of seven years but it may be renewed from time to time on the application made by the registered proprietor of a trade mark subject to payment of prescribed fee.
( 3 ) THE appellant claims that before the expiry of the period of seven years an application under the signature of Rama Shanker Avasthi (respondent No 4) was made by the appellant and respondents 3 and 4 for the renewal of the trade mark "usha" which they had been using continuously since its registration and the same was renewed for a further period of seven years with effect from 11-9-1965. The renewal was also made in the names of the appellant and respondents 3 and 4 after necessary advertisement in the Trade Marks Journal on 1-8-1965.
( 4 ) ON 21-10-1967 respondents 3 and 4 made two applications through their counsel Shri N. K. Anand on Forms T. M.-24 and T. M.-16 of the Rules framed under the Act that the names of the registered proprietors be corrected by substituting the following names in place of the existing ones:-
(I) Shri Jai Madho Avasthi (respondent No. 3 ).
(II) Shri Anand Madho Avasthi (respondent No 5)
(III) Shrimati Shakuntia Devi (respondent No. (6)
(IV) Shrimati Manorma Devi (respondent No. 7)
( 5 ) RESPONDENT No. 6 is stated to be the wife of respondent No. 4 while Shrimati Manorma Devi (respondent No 7) is the wife of a son of respondent No. 3. Respondent No. 5 is the brother of respondent No. 3 and is stated to be living in a village in Unnao District (U. P.) where he is engaged in agriculture.
( 6 ) ON 24-10-1967 the Registrar of Trade Marks made the alteration prayed for in the application filed on Form T. M.-16. Simultaneously on the same day another order was made on the application on Form T. M.-24 whereby the names of respondents 6 and 7 were removed from the certificate and in their place the names of respondents 4 and 8 were included on the ground that a new partnership had been created. Respondent No. 8 is stated to be another daughter-in-law of respondent No. 3, being the wife of his son Ravi Shanker Avasthi.
( 7 ) THE appellant contends that the removal of his name from the certificate of registration as one of the joint proprietors of the trade mark is the result of a conspiracy among the various respondents with the object of depriving him of his rights in the trade mark and that the impugned orders have been made by respondents I and 2 on s appeals which were apparently filed in about the middle of October 1968 would seem to be hopelessly barred by time if it is found that the same were directed against orders that were passed as far back as 24-10-1967. He might therefore have been anxious to make the gap between the date of the orders and the date of the appeal appear as small as possible. But the appeals would in any event be barred by time whether the same are directed against the orrs made on 24-10-1967 or on 16-4-1968 because under Rule 121 of the Rules an appeal from the decision of the Registrar under the Act or the Rules, has got to be filed in the High Court within three months from the date of such decision or within such further time as High Court may allow.
( 9 ) IN the circumstances, the appeals can only be entertained if time is allowed to the appellant and not otherwise.
( 10 ) ON behalf of the re
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