AI Structured Summary
Not yet generated for this judgment
Judgment
S. Usha, J
The three original rectification applications have been filed for removal of the trade marks SULFARM under No. 1224677 in class 1, SALFARM
registered under No. 1275154 in class 1 and BULLET -100 under No. 1275155 in class 1 respectively under the provisions of the Trade Marks Act,
1999 (hereinafter referred to as the Act).M.P. No. 74 & 75/08 have been filed for not taking on record the counter-statement filed by the Respondent
No. 1 and M.P. No. 244&245/08 have been filed stating the Respondent has not complied with the directions of the Board to serve a copy of the
annexures relied and referred by Respondent No. 1 in their counter-statement to the applicant.
The applicant and the Respondent No. 1 were partners of the firm i.e. Rhombic Greenchem Industries engaged in the business of manufacturing,
marketing and selling Essential Plant Nutrients for Agricultural Products since 1996. By a deed of dissolution dated 28.07.2004 the Respondent No. 1
retired from the partnership. Meanwhile the Respondent No. 1 had filed three applications for registration of the trade marks SULFARM on
21.08.2003 claiming user since 31.12.1992, SALFARM on 26.03.2004 claiming user since 31.12.1992 and BULLET-100 on 26.03.2004 claiming user
since 01.01.1992 in his personal name. the user claimed by the Respondent No. 1 was of the predecessor's partnership firm and hence the user
claimed is unlawful. The registrations obtained by the Respondent No. 1 ought to be removed from the Register of Trade Marks on the following
grounds:
a) That the registration of the trade marks in the Register are made without sufficient cause;
b) that the impugned trade marks are wrongly remaining on the Register;
c) that the Respondent No. 1 has made an application for registration in his individual name being a partner in the firm which was the proprietor of the
trade marks;
d) that the Respondent No. 1 has never used the impugned trade mark and ought to be removed for non-use;
e) that the user claimed by Respondent No. 1 is unlawful;
f) that the Respondent No. 1 has committed fraud and wrongly obtained registration of the trade marks;
g) that the Respondent No. 1 has filed a civil suit before the District Court at Bhavnagar by which the applicant is a person aggrieved and;
h) that the Respondent No. 1 has suppressed the material facts and obtained registration by playing fraud.
The Respondent No. 1 herein filed his counter statement denying all the allegations made in the application for rectification. The Respondent No. 1
has stated that he was carrying on business under the partnership firm and they had adopted various trade marks to distinguish their goods. It is also
stated that he retired from the firm on 28.07.04 by a deed of dissolution. The Respondent No. 1 has further stated that he admits the allegations made
in the grounds of the application for rectification. He has further stated that even if the contents are admitted the issue in the deed of dissolution is has
to be decided only under the Indian Partnership Act. The applicant is guilty of misrepresentation and suppression and has not come to Court with clean
hands. The Respondent No. 1 denied the fact that they - applicant and Respondent No. 1 were partners but had annexed a copy of the partnership
deed along with the counter-statement. The civil suit was not filed against the applicant and so he cannot be said to be a person aggrieved and has no
locus standi to file these applications for rectifications.
Counsel for the applicant filed rejoinder to the counter-statement denying the allegations made therein.
We have heard all the three rectification applications together as the parties are the same and issues involved in all the three matters are one and
the same except for the impugned trade marks. In view of the above a common order is being passed. As the parties did not press for the
miscellaneous petitions, the main rectification applications were taken up for hearing in the Circuit Bench sitting at Ahmedabad on 2.12.2009. Learned
Counsel Ms. Rushvi N. Shah appeared on behalf of the applicant and learned Counsel Shri Kapil K. Acharya appeared on behalf of Respondent No.
1.
Learned Counsel for the applicant submitted that all the three applications were filed by the Respondent No. 1 in his individual capacity when he
was a partner in the firm. He had claimed user since 1992 which also was a false statement. The counsel brought to our notice the partnership deed
dated 16.4.1996 and deed of dissolution dated 28.07.2004 and submitted that the three impugned registrations have been obtained in the year 2003
when the Respondent No. 1 was still a partner in the firm. Thus he had suppressed the facts and has played fraud to obtain registration. Learned
Counsel for the applicant also brought to our notice the order passed in the interim application in the civil suit.
Learned Counsel for the applicant further submitted that the Respondent No. 1 had not used the impugned trade mark. In fact he had not denied or
produced any document to say that he had been using the trade mark. The Respondent No. 1 had filed a civil suit against the applicant and thus he had
become a person aggrieved and had the locus standi to file the rectification application. Learned Counsel for the applicant relied on the judgment
reported in AIR 2005 SC 3110 State of Andhra Pradesh Vs.T. Surya Chandra Rao in support of her contention that if an order had been obtained by
playing fraud that should not be allowed to continue and henceforth the same was applicable here and the marks should not be allowed to remain on
the Register as it has been obtained by fraudulent means.
Respondent No. 1 had suppressed the fact that he had been a partner in the firm and had applied for registration in his individual capacity. Learned
Counsel for the applicant relied on the judgment reported in 1988 GLR 2 -902 Vijay J Gadhri v. State and submitted that for this reason the marks
have to be expunged from the Register. The counsel also relied on the judgment reported in 2008 TLPRE -0-1084 K.D. Sharma v. Steel Authority of
India Ltd. to say that a person who approaches a court for relief should come to court with clean hands.
Learned Counsel for the applicant, therefore, submitted that the three impugned registrations be expunged from the Register on the grounds of
fraud, suppression of material facts and non-use of the trade marks.
Learned Counsel for Respondent No. 1 mainly contended that the matter was to be decided under the provisions of Partnership Act as the dispute
was regarding the deed of partnership and its dissolution. He also referred to Section 43 of the Indian Partnership Act. The counsel further submitted
that for removal of the trade mark from the Register on the grounds of non-use of the trade marks, the applicant must be a person aggrieved and the
applicant here is not a person aggrieved and so the application for rectification is not maintainable.
Learned Counsel for the applicant in reply to the counsel for Respondent No. 1's arguments submitted that they had filed an affidavit of evidence
wherein they had already stated that the Respondent No. 1 was not using the trade mark. They also submitted that they obtained registration by
playing fraud.
We have heard both the counsel and have gone through the pleadings and documents. The three applications being for removal of three marks
from the Register of trade marks, the first issue to be decided would be to see if the applicant has locus standi to maintain the application for
rectification. It is clear as seen from the provisions of Section 21 of the Act, any person may file an opposition for registration of the trade mark
whereas only a person aggrieved can maintain an application for rectification.
The term ""aggrieved person"" though not defined in the Act, has been liberally construed in several cases. The classic case in this respect is
Powell's Trade mark where it was held that , ""I should be very unwilling unduly to limit the construction to be placed upon these words; because
although they were no doubt inserted to prevent officious interference by those who had interest at all in the Register being correct and to exclude a
mere common informer, it is undoubtedly of public interest that they should not be unduly limited, in as much as it is a public mischief that there should
remain upon the Register a mark which ought not to be there, and by which many persons may be affected, who, nevertheless, would not be willing to
enter upon the risk and expense of litigation. Wherever it can be shown as here, that the applicant is in the same trade as the person who has
registered the trade mark, and wherever the trade mark, if remaining on the Register, would, or might limit the legal rights of the applicant, so that by
reason of existence of the entry on the Register he could not lawfully do that which but for the existence of the mark upon the Register he could
lawfully do, it appears to me he had a locus standi to be heard as a person aggrieved.
A Defendant in an action for infringement of a registered trade mark or in an action for passing off is a person aggrieved.
In the instant case on hand it is seen that the applicant has also been carrying on the same business and the trade marks are also the same -
identical. The suit has been filed by the Respondent No. 1 who was a partner in the partnership firm Rhombic Greenchem Industries against the firm
which is now known as M/s Rivera Agrical Industries. Based on the principles laid on in Powell's TM case, it clear that the applicant is a person
aggrieved and will be affected if the trade mark is allowed to continue on the Register.
As regards the issue of non-user, we are of the view that the applicant has not placed any material or substantiated his plea by way of
documentary evidence and we, therefore, reject the ground of non-use for expunging the marks.
The other issue is that the impugned registration has been obtained by suppressing the material facts and by playing fraud on the Registrar. Though
the application does not mention about the three marks or the use of the same by the firm, Respondent No. 1 has admitted the partnership firm and the
dissolution but has not denied the fact that these marks were used by the firm. The Respondent No. 1 has gone even further and submitted that the
dispute has got to be decided by another forum under the Indian Partnership Act. The same has been recorded in the order before the civil court.
Fraud like aggrieved person has not been defined in the Act. In Re. Om Prakash AIR 1956 P&H 4, Zenith Colour Trading Co. v. Taherally (1956)
58 Bom L R 912, it was held ´Fraud - If the original registration has been obtained by fraud, as for instance, by wrong statements deliberately made
in the affidavits submitted to the Registrar, the mark can be removed from the Register. Simply alleging fraud is not sufficient, for in the absence of
particulars, the application would be incomplete.
In Formica's case - Caprihans v. Registrar 80 CWN 222, it was held, 'The Judge has complete freedom to look to, and draw upon the pleadings
and all the affidavit evidence on record in order to satisfy itself whether fraud exists. The Court can draw upon diverse materials such as answers to
interrogatories delivered in the suit, allegations on oath by the parties, or by any; person present on their behalf, or made by the pleader of such parties,
and contents of documents produced by either party (Or 14 r 3 of CPC) but not by traveling beyond the records to satisfy itself whether fraud in fact
exists or not. A Judge has the freedom to look to, and draw upon, materials other than those contained in the pleadings for fixation of issues when he
tries a suit or sets down a petition for trial or evidence. He can do just the same when he proceeds to hear the petition upon affidavit evidence. It is
within the competence of Judge to look beyond the pleadings in search of fraud, but beyond the materials on record he cannot travel"".
The above observations are applicable in the instant case. The applicant though has not pleaded in brief as to how he is affected and how fraud
has been played by the Respondent No. 1, but from the orders passed by the District Judge in Civil Suit No. 101 of 2006 at para 3 at page 13 and para
31 at page 25 it is clearly stated that partnership firm existed and they were using the three trade marks and the Respondent No. 1 was a partner.
During the existence of the firm, the Respondent No. 1 had made the application for registration of the impugned marks.
I shall now deal with the plaint and application for ad-interim injunction (hereinafter referred to as 'the application' and the 'the plaint' accordingly)
and replied chronologically. The partnership concern in the name of M/s Rivera Agrical Industries and inter alia engaged in the business of
manufacturing, marketing and selling Essential Plant Nutrients for Agricultural Products under the Trade Mark Sulfarm which is derived from its
chemical compositions Sulphur and Ammonia and Bullet-100 at the address stated in the title of the suit since the year 2004 uninterruptedly
continuously, openly and extensively throughout India and the Defendant have become exclusive proprietor on ground of long usage of the
Trademarks and the Copyright subsists in its label. The predecessor of the Plaintiff's firm was doing the same business under the identical trademarks
since 1993 and under which the present Plaintiff Kishorbhai Patel was one of the partners.Thereafter, he retired from the partnership and the Plaintiff
and the Defendant have signed a deed of the retirement on 28.07.2004 and thereafter, the above named Defendant have started its business under the
name M/s Rivera Agrical Industries. It was clearly mentioned about the rules to be observed by the retiring partner in both the deed which are
attached herewith reply or the written statement of the plaint and an injunction application. As stated above, the Plaintiff have committed breach of the
terms and the conditions and without paying the debts and further while remaining in the partnership with the Defendant have started its personal
different simultaneous business under the alleged Trademarks and thus committed fraud and tort. Not only this but he has also applied for registration
of its trademarks and under sign since 31.12.1992, while he was with Defendant's predecessors and he has separated in the year 2004. So the
Plaintiff's intention was clearly showed as malafide and unconstitutional. Not only this fraud action of the Plaintiff exposes the sheer jealousy towards
the Defendant but it also injured the Defendant both mentally and economically and is suffering extreme. Thus, these maltreat and bad motives of the
Plaintiff cannot be tolerated any more as it is against the rule of the natural justice and the same is unconstitutional as well. That, I am one of the
partners of the Defendant's firm and looks after all business affairs and therefore, I am competent to verify and sign the reply or the written statement
and swear an affidavit on oath.
He has further cited the judgment 2002(25) PTC 327 (Del) wherein, ""Civil Procedure Code, 1908 - Order 39 Rules 1 & 2 - interim injunction -
suppression and concealment of material facts - do not come to the court with clean hands - suppression of material facts is aimed at gaining
advantage - Plaintiff is trying to over reach the court - played fraud upon the court - not entitled to relief of interim injunction."" And 2002 (25) PTC
243 (Del) wherein, ""Civil Procedure Code, 1908 - Order 39 Rules 1 & 2 - interim injunction - passing off action - Plaintiff approached the court with
unclean hands - suppressed material facts from the court - not entitled to ad-interim injunction ."" these both authorities are applicable to the present
case because the present Plaintiff has not come with the clean hands before the Court hence, suppressed the material fact that he was a partner of
M/s Rhombic Greenchem Industries and he was responsible for the debts and liability, the case is pending in the Kutiana Court and when the
partnership firm was not dissolved at the time he has applied for the trade mark so, behind the back of the present M/s Rivera Agrical Industries
partner Bhimjibhai he has done fraud with him and started for the obtaining the registration of the trade mark.These authorities are also applicable to
the present case because in the knowledge of the Plaintiff since 2004 and when the predecessor firm was in existence since 1993 the present Plaintiff
and the Defendant Bhimjibhai the partner of the M/s Rivera Agrical Industries was doing the business in the name and style in market with the
identical trade mark for which the present Plaintiff has applied. So, in the knowledge of the Plaintiff the business was continued one by the Bhimjibhai
so, the Plaintiff is not entitled for any injunction as per these authorities.
From the above lines it is clear that the Respondent No. 1 has committed fraud by suppressing the material facts that he continued to be the
partner from 1993 till 2004 when the firm was dissolved. Having filed an application for registration in his personal name in the year 2003 claiming
user since 1992 definitely amounts to fraud. In such circumstances, we do not think it fit to allow the marks to remain on the Register without
sufficient cause.
Accordingly, ORA Nos. 150&151/06/TM/AMD and 25/07/TM/AMD are allowed. We direct the Registrar of Trade Marks to remove the
registered trade marks registered under Nos. 1224677 in class 1, 1275154 in class 1 and 1275155 in class 1 from the Register. As the main
rectification applications have been disposed of, the miscellaneous petitions do not survive. However, there shall be no order as to costs.