Application for removal of trade marks by another.

This is a petition under sections 37 and 46 (2) of the Trade Marks Act (Central Act V of 1940) for the removal of the trade mark of the first respondent from the Register of Trade Marks.

The petitioner is a private limited company carrying on business in the manufacture and sale of handloom sarees. The first respondent is a company whose registered office is in Bombay. It owns and conducts a spinning mill in Bangalore The second respondent is the Registrar of Trade Marks, Bombay.

On 10th June, 1942 , the first respondent made Application No. B-1108 for the registration of a trade mark consisting of the word ‘Chamundi’ in respect of cotton and artificial silk piece goods of all kinds. On 7th October, 1942, the first respondent made two further applications, being Applications Nos. B-62078 and B-62080 for registration of trade marks each containing a picture of Goddess Chamundi and claiming registration of the marks in respect of

‘tissues (piece goods); bed sheets and table covers; textile articles not included in other classes".

All the three applications were accepted and the marks were registered. The registration was, dated 10th June, 1942, in the one case and 7th October, 1942, in the other cases. The registration of all the three marks has been renewed for a further period of 15 years, after the expiration of the seven years from the original date of registration under the provisions of section 18 (1) of the Trade Marks Act of 1940. The Registrar in his statement says that the three trade marks Nos. B-1108, B-62078 and B 62080 are associated with one another under the provisions of section 12 of the Trade Marks Act.

The petitioner applied to the second respondent by Application No. 141798 on 30th December, 1949, for the registration of the trade mark containing a picture of Goddess Chamundi, in respect of piece goods. The application was opposed by the first respondent and is pending before the second respondent. The petitioner files this application under sections 37 and 46 (2) of the Trade Marks Act praying that the first respondent’s registered trade marks Nos. B-1108, B-62078 and B-62080 be taken off the register.

The petitioner alleges that, in respect of piece goods, the trade marks were registered without any bona fide intention on the part of the first respondent, that they should be used in relation to such goods, and that up to a date one month before the date of this petition a continuous period of five years or longer had elapsed during which the trade mark was registered and during which there was no bona fide use thereof in relation to those goods by the first respondent.

The first respondent takes a preliminary objection that the High Court of Madras does not have jurisdiction to hear and decide the petition. The point is whether the petition can be heard and disposed of by this Court.

Section 37 (1) enacts that a registered trade mark may be taken off the register on an application to a High Court or to the Registrar. The term ‘High Court’ is thus defined in section 2 (1) (d) of the Act, as amended by the Adaptation of Laws No. 1 Order of 1956.

"High Court means-(a) in relation to any State, the High Court for that State; (b) in relation to the Union territories of Delhi and Himachal Pradesh, the High Court of Punjab; (c) in relation to the Union territories of Manipur and Tripura, the High Court of Assam; (d) in relation to the Union territory of the Andaman and Nicobar Islands, the High Court at Calcutta; and (e) in relation to the Union territory of Laccadive, Minicoy and Amindivi Islands, the High Court of Kerala".

Under sections 37 and 46 of the Act, this Court would have jurisdiction to entertain this petition, if the subject-matter of the petition relates to this State. The question, therefore, resolves itself into whether the subject-matter of the petition has relation to the State of Madras. There is no authority directly bearing on the point.

The Act provides for an application to be made either t