Back
Allahbad High Court
G.C.MATHUR,HARISWARUP
Ramchandra - Appellant
Versus
State of U.P. - Respondent
Decided On : 09/14/1970
TRADEMARK - REGISTRATION - RECTIFICATION - SECTION 24 OF THE TRADE MARKS ACT, 1940 - APPLICABILITY - LEGAL PROCEEDINGS - INTERPRETATION - FRAUD - SECTION 8(C) OF THE ACT - CONTRARY TO LAW - JOINT HINDU FAMILY PROPERTY - RECTIFICATION OF REGISTER - SECTION 46 OF THE ACT - APPLICABILITY.
Fact of the Case:
The appellants filed an application under Section 46 of the Trade Marks Act, 1940, seeking to expunge two entries of registration of Trade Mark in favor of the respondents. The appellants claimed that the registration was obtained by practicing fraud on the Registrar of Trade Marks and that the words "Him" and "Kalyan" are words widely used in Ayurved and cannot be said to have been invented by the respondents' father. The respondents claimed that the business and trade marks were the self-acquired property of their father and not joint family or ancestral property.
Finding of the Court:
The Court held that the application under Section 46 of the Trade Marks Act was not maintainable as it was filed more than seven years after the date of registration and the trade marks did not offend against the provisions of Section 8 of the Act. The Court further held that the appellants failed to prove that the respondents committed any fraud in obtaining the two trade marks and that the word "Himkalyan" had acquired distinctiveness in the trade of the respondents' father and was not publici juris. The Court also held that the trade marks were not the property of the joint Hindu family and that Badri Prasad, one of the appellants, had relinquished his interest in the "Himkalyan" business and the two trade marks in favor of Chakradhar Saran, the other respondent.
Issues: 1. Whether the application under Section 46 of the Trade Marks Act was maintainable after seven years of the date of registration? 2. Whether the trade marks offended against the provisions of Section 8 of the Act? 3. Whether the respondents committed any fraud in obtaining the two trade marks? 4. Whether the word "Himkalyan" had acquired distinctiveness in the trade of the respondents' father and was not publici juris? 5. Whether the trade marks were the property of the joint Hindu family? 6. Whether Badri Prasad had relinquished his interest in the "Himkalyan" business and the two trade marks in favor of Chakradhar Saran?
Ratio Decidendi: 1. Section 24 of the Trade Marks Act bars legal proceedings relating to a registered trade mark after the expiration of seven years from the date of registration, unless the registration was obtained by fraud or unless the trade mark offends against the provisions of Section 8. 2. The term "legal proceedings" in Section 24 includes proceedings under Section 46 of the Act, which provides for rectification of the register of trade marks. 3. The word "Himkalyan" had acquired distinctiveness in the trade of the respondents' father and was not publici juris, as it had been used by him for over 40 years and had become associated with his hair-oil. 4. The trade marks were not the property of the joint Hindu family, as the respondents' father had claimed sole ownership in the applications for registration and had executed a gift deed in favor of Chakradhar Saran, which was confirmed by Badri Prasad in an agreement executed in 1958.
Final Decision: The Court dismissed the appeals filed by the appellants and the cross objection filed by the respondents.
G. C. MATHUR, J. :- A report under Sections 147 and 323, I. P. C. was lodged at P. S. Sahatwar against the five applicants in this revision. After investigation, the S. O. on August 27, 1967, wrote out a final report to the effect that no case was made out. Before this final report was received by the Magistrate, Tarkeshwar Pathak O. P. No. 2 made an application on September 13, 1967, before the Magistrate concerned, praying that the final report be rejected and the accused be summoned. The Magistrate ordered this application to be put up with the final report when received. On September 19, 1967, the applicant made an application to the Magistrate to reject the application dated September 13, 1967. On this application also, the Magistrate passed an order directing it to be put up when the final report was received. After the final report was received, the two applications together with the final report were put up before the Magistrate. On September 26, 1967, he passed the following order :-
"There is evidence sufficient prima facie to summon the accused. Let accused be summoned. Register the case and issue summons to the accused. A.P.P. to prepare the copies."
Against this order, the applicants filed a revision before the Sessions Judge, Ballia. The 1st Additional Sessions Judge, Ballia, dismissed the revision on February 29, 1968, holding that, in view of the decision of the Supreme Court in Abhinandan Jha v. Dinesh Mishra, 1968 Cri LJ 97
: AIR 1968 SC 117, it was open to the Magistrate to take cognizance under Section 190(1)(b) Criminal P. C., even though the police had submitted a final report. The applicants then filed this revision. The revision came up for hearing before K. B. Asthana, J. who referred it for decision to a larger Bench as, in his opinion, the decision of the Supreme Court required to be interpreted, since there were two conflicting observations therein. That is how this case has come before us.
2. Sri R. Pandey, learned counsel for the applicants, has not disputed before us that the Magistrate could take cognizance of the case even though a final report had been submitted by the police. His contention is that the Magistrate could take cognizance either under Section 190(1)(a) on the basis of the application of Tarkeshwar Pathak dated September 13, 1967, which amounted to a complaint, or he could take cognizance under Section 190(1)(c), Criminal P. C. His contention is that, in no case, could the Magistrate take cognizance under Section 190(1)(b). From the tenor of the order of the Magistrate dated September 26, 1967, it appears that he had taken cognizance under Section 190(1)(b), Criminal P. C.
3. Since the question raised in this case relates to the applicability of clauses (a), (b) and (c) of sub-section (1) of Section 190, it is desirable to quote Section 190(1) of the Code of Criminal Procedure :
"190 (1). Except as hereinafter provided, any Presidency Magistrate, District Magistrate or Sub-Divisional Magistrate, and any other Magistrate specially empowered in this behalf, may take cognizance of any offence -
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or upon his own knowledge or suspicion, that such offence has been committed."
Obviously, the Magistrate has not taken cognizance on the application of Tarkeshwar Pathak dated September 13, 1967, and, therefore, he cannot be said to have taken cognizance under Section 190 (1) (a), Criminal P. C. The question that remains for determination is whether, in the circumstances of this case, cognizance could be taken under clause (b) or clause (c). Sri Pandey contends that cognizance could not be taken under clause (b) and could only be taken under clause (c). For this contention, he relied upon the decision of the Supreme Court referred to above.
4. In the Supreme Court case as reported
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
