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Judgment
S. Usha, J
The rectification application has not been numbered but placed before us for deciding the issue of maintainability on the ground as to how one
application is filed by two applicants.
The counsel for the applicant stated that the second applicant M/s Tiya Industries adopted the trade mark TIYA in the year 1974 and had been
using the same continuously and extensively by which they have acquired an exclusive right to use the trade mark. They have obtained registration of
the trade mark TIYA under No. 299272 in class 6 as of 13.09.1974 and the same has been renewed till 13.09.1988. On 7th March, 1983 the second
applicant assigned the trade mark in favour of the first applicant M/s Bhatia Industries by a deed of assignment and transferred all rights and interest
in the trade mark in favour of the first applicant. The counsel further stated that as per Section 47 of the Trade Marks Act, 1999, there is no mention
as to that the application for rectification can be filed by only one applicant. The counsel further relied on Form-1 an application for removal of the
trade mark and stated that it mentions as ""I or we"" which is that it can be either by one or more persons. The counsel also relied on the judgment
reported in AIR 1959 Patna 54 Moti Lal v. The State
The counsel has further averred that by assignment the first applicant has stepped into the shoes of the second applicant and continues to use the
same continuously since 1974. The first applicant has filed a request on Form TM-24 for bringing on record the name of the subsequent proprietor but
the same could not be taken on record for various reasons. The registered trade mark was also not renewed. The first applicant has therefore made a
fresh application for registration of the trade mark.
We have heard and considered the arguments of the counsel. In the instant case, the above application is an application for rectification and the
application for rectification can be filed by a person aggrieved and need not have to be a registered proprietor or user. The mark which has been
assigned has not taken effect as per the provisions of Section 42 of the Trade Marks Act, 1999 (hereinafter referred to as the Act). As per Section 42
of the Act, the mark whether registered or unregistered, the procedure prescribed therein is to be followed within six months. If the same is not done
within six months, the assignment will become inoperative for registration of the title as per Section 45 of the Act. In such circumstances, it will be a
ground for rectification as the mark is wrongly remaining on the Register. In this case, it is seen that for this reason, in our opinion the first applicant
has made a fresh application. The rights whatever were with the second applicant has passed on to the first applicant by assignment. The first
applicant's own admission is also that they have stepped into the shoes of the second applicant. It has not been established as to how the second
applicant is a proper and necessary party to the proceedings. The objection raised by the Registry is, therefore, upheld.
Liberty is granted to the applicant to amend the application and the statement of case. The applicant is directed to strike off the name of the second
applicant and file the amended copy within 15 days from the date of receipt of this order.
In view of the above, the office objection is upheld. The applicant is at liberty to file amended copy of application and statement of case within a
period of 15 days from the date of receipt of this order. In case of default, the registry is directed to strike out the name of the second applicant and
number the application if in order otherwise.