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2019 Supreme(Mad) 1507
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
S.V. Sivalinga Nadar & Sons, a firm by Partner S.V. Sivalinga Nadar – Petitioner
Versus
The Joint Registrar of Trade Marks, Trade Mark Registry, Chennai & Others – Respondents
W.P. No. 34305 of 2004 & W.M.P. Nos. 41434 of 2004 & 25148 of 2017
Decided On : 10-01-2019
For the Petitioner:V. Selvaraj, Advocate.
For the Respondent:K. Srinivasa Moorthy, Standing Counsel, P.H. Arvind Pandiyan, Senior Counsel for Gladys Daniel, T.V. Krishnamachari, Advocates.
Headnote:
Trade Marks Act, 1999 - Section 57 - Constitution of India - Article 226 - Quash impugned - Removal of said registration - Remanded case back - Aggrieved over same respondents 2 to 4 had filed an S.L.P. before Hobble Supreme Court - While granting leave by an order Hobble Supreme Court remanded case back to Hobble Division Bench of this Court to decide OSA afresh ignoring non-registration of Award - After remand Division Bench of this Court by its judgment dismissed appeal in O.S.A. and confirmed decree passed which was later confirmed by Hobble Supreme Court – Held, Court do not think it is right to take a part of word and compare it with a part of other word one word must be considered as a whole and compared with other word as a whole Court think it is a dangerous method to adopt to divide word up and seek to distinguish a portion of it from a portion of other word - In light of decision referred to supra Court are of opinion that in instant case no one can claim exclusive right over mark SVS stating that it was assigned to them - Absolutely Award of Arbitrators does not give any meaning and interpretation as made by senior counsel for contesting respondents – Hence submissions made by senior counsel for contesting respondents in this regard cannot be accepted - Furthermore when Arbitrators have not specifically chosen to allot mark SVS it cannot be claimed by contesting respondents that they only are entitled to use mark SVS and petitioner is not entitled to use mark SVS - If really there is an intention in minds of Arbitrators to allot trade mark SVS in favor of contesting respondents they would have specifically stated same in Award - But no such statement was available in Award of Arbitrators - Interpretation made by senior counsel for contesting respondents based on Clauses 27 & 28 in Award cannot be accepted by this Court - It is further contended by senior counsel for contesting respondents that subsequent to Award mark SVS was registered by them in respect of several other products – But said contention cannot be countenanced as it is represented by counsel for petitioner that applications have been filed before Registrar of Trade Marks for rectification under Section 57 of Trade Marks Act, 1999 for removal of said registration – Petition closed
JUDGMENT :
R. Subbiah, J.
(Prayer: Writ Petition has been filed under Article 226 of the Constitution of India, praying for issuance of a Writ of Certiorari, calling for the impugned order of the Intellectual Property Appellate Board dated 03.09.2004 passed in TA/32/2003/TM/CH/3354 confirming the order of the Joint Registrar of Trade Mark, dated 05.02.2001, relating to the application of the petitioner No.479367 B dated 05.10.1987 advertised in the Trade Mark Journal No.1148, dated 01.04.1997, and to quash the order dated 03.09.2004.)
1. This writ petition has been filed praying to quash the impugned order dated 03.09.2004 passed by the Intellectual Property Appellate Board in TA/32/2003/TM/CH/3354, confirming the order dated 05.02.2001 passed by the Joint Registrar of Trade Mark (1st respondent herein) relating to the application of the petitioner No.479367 B dated 05.10.1987 advertised in the Trade Mark Journal No.1148, dated 01.04.1997.
2. The brief facts of the case of the petitioner are as follows : -
2-1. One S.V. Sivalinga Nadar being eldest brother of his family consisting of himself, his five brothers and a sister namely, S.V.Harikrishnan, S.V.Chandrapandian, S.V.Kasilingam, S.V.Ramachandran, S.V. Natesan and Mrs.Kanthimathi Ammal, constituted a partnership firm on 18.09.1968 trading under the name and style of "S.V.S. Oil Mills" at No.8, T.H. Road, Chennai, and were manufacturing and marketing edible refined oil and adopted the Trade Mark 'S.V.S.', consisting of the three letters placed above an inverted triangle. In the year 1981, when there was difference of opinion among the partners, the dispute was referred to the arbitration by a letter dated 08.10.1981 and the Arbitrators passed an Award on 09.07.1984 bifurcating the various assets belonging to the family in respect of the firms "S.V.S.Oil Mills", "S.V.Sivalinga Nadar & Bros etc.". The said Award came into effect on 14.07.1984.
2-2. The letters "S.V.S." denotes the name 'S.V.Sivalinga Nadar'. He filed a petition in O.P.No.247 of 1984 before this Court to set aside the Award dated 09.07.1984 passed by the Arbitrators. Similarly, the respondents 2 to 4 have filed a petition in O.P.No.230 of 1984 to pass a decree in terms of the Award.
2-3. By an order dated 17.11.1988, this Court dismissed O.P.No.247/1984 filed by S.V.Sivalinga Nadar and allowed O.P.No.230 of 1984 filed by the respondents 2 - 4 and passed a decree in terms of the Arbitration award. S.V.Sivalinga Nadar thereafter filed an appeal in O.S.A.No.191/1988, which was allowed by a Division Bench of this Court setting aside the Award of the Arbitrators on the ground that the award was not registered.
2-4. Aggrieved over the same, the respondents 2 to 4 had filed an S.L.P. before the Hon'ble Supreme Court. While granting leave, by an order dated 11.01.1993, the Hon'ble Supreme Court remanded the case back to the Hon'ble Division Bench of this Court to decide OSA afresh, ignoring the non-registration of the Award. After remand, the Division Bench of this Court, by its judgment dated 27.10.1993, dismissed the appeal in O.S.A.No.191/1988 and confirmed the decree passed in O.P.No.230/1984, which was later confirmed by the Hon'ble Supreme Court on 19.11.1998.
2-5. In the meantime, even prior to passing of the arbitration award, S.V.Sivalinga Nadar, along with his sons S.V.S.Senthilkumar, S.V.S.Velkumar, S.V.S.Rajakumar and S.V.S.Vasanthkumar started trading as S.V.Sivalinga Nadar and Sons at 444, Pandit Jawaharlal Nehru Road, Villupuram, as manufacturers and merchants of refined edible oil and filed an application claiming user since July 1987, vide Application T.M.No.479367B dated 05.10.1987, which was published in the Trade Mark journal on 01.04.1997 under the provisions of Section 20(1) of the Trade and Merchandise Marks Act 1958 as 'advertised before acceptance'. The application was for registration of a label mark consisting of logo with the letters SVS. The 2nd respondent representing as a Partner of the erstwhile
