Assignment of the right to use the trade mark.

JUDGMENT :- This is an appeal against the order of the learned Assistant Registrar of Trade Marks, dated 20th March, 1965 registering a trade mark in the name of B. Monappa, the first respondent in the appeal. To understand the points in controversy, it is necessary to have an idea of the background and the events which led to the filing of the Application No. 216880 of Monappa. Monappa and the first appellant B. S. Ramappa are the sons of the late B. Ramappa, Monappa being the elder son. The late Ramappa started the business of manufacturing tiles in or about 1921 in Mangalore and invented the trade mark known as the Taj Double Bavta Mark. Bavta means a flag and the mark itself will be described a little later. He was therefore the founder of the trade mark. He registered it in or about 1936 in the Chamber of Commerce, Madras; but at that time there was no statute for registration in this country, and the first statute was passed in the country only in 1940. He was manufacturing tiles in two factories, one called the Jayaram Tile Works in Kudroli, Mangalore-3 and the other the Indian National Tile Works Hoige Bazaar Bolar, Mangalore-1. The premises of the Indian National Tile works had been taken by him on lease. The premises of the Jayaram Tile Works belonged to him absolutely.

2. In 1946, the younger son, B. S. Ramappa (the first appellant) made an application, No. 126612 for registration of the Taj Double Bavta mark in his own name under the provisions of the Trade Marks Act (V of 1940) claiming to be the proprietor of the Jayaram Tile Works, Kudroli, and of the trade mark. This was really a false claim because the proprietor was the father B. Ramappa, and the junior son was at best only a manager. However, the mark was registered on 12th May, 1950 but the registration dated back to 18th December, 1946, the date of the application under Section 16 (i) of the Trade Marks Act of 1940. Vide Para. 4 of the decision of Ramaswami, J., in Monappa v. Ramappa, AIR 1956 Mad 184.

3. On 17th January, 1950, the father, B. Ramappa, executed a registered settlement deed of the Indian National Tile Works, Hoige Bazaar, Mangalore-1, on the elder son, B. Monappa, with all the equipment and implements contained in the factory for the manufacture of tiles. The deed purports to be in respect of immovable and moveable properties described therein. It is the claim of Monappa that under this deed the trade mark, Taj Double Bavta mark, of the founder also was settled on Monappa so far as the Hoige Bazaar factory was concerned. The deed itself does not expressly refer to the trade mark, but Monappa contends that as a matter of inference and true construction of the document, the trade mark passed to him. This contention is based on the fact that in the list of moveable properties given in the deed, wooden frames and iron press for manufacturing tiles are also mentioned. It is said that these presses contained the disc on which was imprinted the trade mark and that the discs were not removed by the founder.

4. On the above basis Monappa began using the above trade mark with slight alterations. At this stage I may give a brief idea of the mark registered in the name of B. S. Ramappa in 1946 and the slight alterations made by B. Monappa. The registered mark was the original trade mark of the founder and consisted in the main of a label containing the device of a flag and the word 'flag' inside an outline of a shield. Just on the top of the shield there was the device of a crown flanked on either side by the device of flag. At the bottom of the shield there was the legend "Taj Double Bavta" and the numeral 1596'. The alterations made by Monappa were these. At the top of the Crown and the two flags he added the word 'Monappa's.' He shifted the numeral 1596 from the bottom to a place inside the outline of the shield and just above the device of the flag.

5. The younger son, B. S. Ramappa issued a notice on 27th July, 1951 (vide Eage 24 of the typed