Back
IN THE HIGH COURT OF KERALA AT ERNAKULAM
N.Nagaresh, J.
Kunhi Muhammed Etayattil – Petitioner
Versus
The Asst. Registrar Of Companies, Central Registration Centre, Ministry Of Corporate Affairs, The Indian Institute Of Corporate Affairs (Iica), Plot No. 6,7,8, Sector 5, Imt Manesar, Manesar, Haryana, And Ors. – Respondents
WP(C).No.3057 OF 2021(F)
Decided On : 07-04-2021
Trade Marks Rules, 2002 – Trade Marks Act, 1999 – Section 28 – Limited Liability Partnership Rules, 2009 – Rule 18 – Limited Liability Partnership Act – Section 15 – Trademark rejection on grounds of similarity – Petitioner filed Form FiLLiP for incorporation of Limited Liability Partnership under name 'Reef Centre for Wellness and Excellence LLP'. – 1st respondent–Assistant Registrar of Companies, as per Ext.P4, approved proposed name of the LLP with remark “No Resemblance found, TM Checked u/c (Under Class) 44,35,41 Name can be given”. – However, the 1st respondent noted certain defects in application. – Petitioner rectified defects and resubmitted FiLLiP form – Resubmitted FiLLiP Form was once again sent back by e-mail stating that NOC should be provided by same person in whose name utility bill was furnished – Petitioner submitted Ext.P6 explanation clarifying that NOC signed by building owner was already given and telephone bill in name of Reef Wellness and Excellence was also submitted –
Finding of the Court:
It is clear from Section 28 that exclusive right to use a trade mark is given to a registered proprietor of a trade mark only in relation to goods or services in respect of which trade mark is registered – It is evident from Ext.P16 that word REEF is now included in names of entities dealing in Class 05 goods in Fourth Schedule to Trade Marks Rules, 2002, namely, Pharmaceutical, veterinary and sanitary preparations, dietetic substances adapted for medical use, food for babies, plasters, materials for dressings; materials for stopping teeth, dental wax; disinfectants, preparation for destroying vermin; fungicides, herbicides. – Petitioner proposes to deal in services and his activity may fall under Classes 44, 35 or 41 as is evident from Ext.P4 communication of the respondents. – If a trader or manufacturer actually trades in or manufactures only one or some of the articles coming under a broad classification and such trader or manufacturer has no bonafide intention to trade in or manufacture other goods or articles which also fall under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under the broad classification and by that process preclude the other traders or manufacturers from getting registration of separate and distinct goods which may also be grouped under the broad classification – When petitioner sought for a word name for a service which word name is not identical or deceptively similar to other word names already registered for a different class of products, respondents are not justified in rejecting application of petitioner for the reason that proposed name include work “REEF” which is existing trade mark under Class 05. – Respondents are not justified in declining incorporation of LLP as sought for by petitioner on ground of similarity of name. –
Result: Writ Petition Allowed
JUDGMENT :
The petitioner has approached this Court seeking to set aside Ext.P15 rejection letter and to direct the 1st respondent to process Ext.P11 application for incorporation of LLP without raising any dispute on the proposed name “Reef Wellness and Excellence LLP”.
2. The petitioner would submit that he proposes to incorporate a Limited Liability Partnership (LLP) under the Limited Liability Partnership Act, for doing business in Recreation and Wellness Centres, in the name and style “Reef Wellness and Excellence LLP”. The petitioner therefore submitted Ext.P1 Form RUN-LLP for reservation of the name “Reef Center for Wellness and Excellence LLP”, under Rule 18(5) of the LLP Rules. The petitioner’s application was approved as per Ext.P2 letter dated 22.05.2019, wherein it was stated that the mentioned name is made available for registration of the LLP for new incorporation.
3. On 23.01.2020, the petitioner filed Form FiLLiP for incorporation of the Limited Liability Partnership under the name 'Reef Centre for Wellness and Excellence LLP'. The 1st respondent–Assistant Registrar of Companies, as per Ext.P4, approved the proposed name of the LLP with the remark “No Resemblance found, TM Checked u/c (Under Class) 44,35,41 Name can be given”. However, the 1st respondent noted certain defects in the application.
4. The petitioner rectified the defects and resubmitted the FiLLiP form on 05.02.2020. However, the resubmitted FiLLiP Form was once again sent back by e-mail dated 05.02.2020 stating that the NOC should be provided by the same person in whose name the utility bill was furnished. The petitioner submitted Ext.P6 explanation clarifying that NOC signed by the building owner was already given and telephone bill in the name of Reef Wellness and Excellence was also submitted.
5. The 1st respondent again rejected Ext.P3 application on 18.02.2020 as per Ext.P7, holding that in the case of proprietorship, NOC should be given on the letterhead duly stamped and signed and further that Business Visa of one of the partners, who is a resident of India, also has to be submitted. The petitioner submitted reply to Ext.P7. As the 1st respondent did not proceed further, the petitioner filed Ext.P8 complaint dated 04.03.2020 to the Escalation Authority under the Ministry of Corporate Affairs.
6. The Escalation Authority, without considering the contentions in Ext.P8, rejected the complaint on 04.03.2020 as per Ext.P9 merely stating that the queries are validly raised. The petitioner again represented before the Escalation Authority that the 1st respondent cannot demand an OCI Card from an Indian Passport holder. Thereupon, by Ext.P10 dated 04.03.2020, the Escalation Authority required the petitioner to file a fresh Form FiLLiP as the maximum number of re-submissions was already over.
7. The petitioner thereupon filed fresh Form FiLLiP dated 12.06.2020 as per Ext.P11. The petitioner was then served with Ext.P12 mail dated 14.06.2020 informing that “proposed names include the word REEF is TM under Class 5”. Hence, it cannot be considered as per Section 15(2) of the Limited Liability Partnership Act, 2008. The petitioner submitted Ext.P13 clarification stating that Class 5 deals with Pharmaceuticals and related products whereas service being provided by the petitioner falls under Class 35.
8. The petitioner as per Ext.P14 mail dated 22.06.2020 was again requested to re-submit, with the remark that Subscriber sheet submitted in FiLLiP is too old. The petitioner accordingly resubmitted the Form. The petitioner’s application was again rejected as per Ext.P15 dated 09.07.2020, this time stating that the proposed name REEF has an existing trademark under Class 5. The petitioner submitted Ext.P18 representation stating that he had reserved the name earlier. Though the period of such reservation was over, in the subsequent communications the petitioner was informed that the name is available and no objections were raised. Furthermore the already existing tr
SupremeToday
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
