Sameer Khan And Ors vs Azizul Rahaman Khan And Ors

 Prabha Sridevan, J

These three appeals are taken up together for hearing and will be disposed off by a common order. Three oppositions were filed in respect of

Application Nos. 1440842, 1440843 & 1441820, eight oppositions against Applications No. 1410547, 1410548, 1410549, 1410550, 1410551, 1410552,

1410553, 1410554 and again three oppositions against Application Nos.1440842, 1440843 and 1441820.

2 . Impugned order in OA/88/2009/TM/CH & OA/89/2009/TM/CH are identical OA/25/2009/TM/CH is almost the same except for three additional

paragraphs. Against the 1st batch, OA.25/2010 has been filed, against the 2nd OA/88/2009 and against the third, OA/89/2009. The matter in issue is

the same, we are dealing with all of them by this one order.

One Mr. Mohammed Khan is the founder of the firm at Guntur (Mohammed Khan Jewellers and sons) (referred to as Guntur firm) in 1985. The

firm was engaged in he business of Gold & Silver Jewellery etc. In 1991, the said Mohammed Khan started a firm in Hyderabad, in the name of

Mohammed Khan Jewellers and sons (referred to as Hyderabad firm). Both the Guntur firm and Hyderabad firm were commenced by the same

person. The Trade Mark consists of the word ""Mohammed Khan"" and a logo depicting inter-twined letters MDK along with the device diamond above

all placed within a circle.

The partners of the Guntur firm were:

Sri. Mohammed Khan

Sri. Azizul Rahaman Khan

Sri. Fazulul Rahaman Khan

Sri. Athaur Rahaman Khan

Sri. Niyamathulla Khan S/o Late Mohammed Khan and the partners of the Hyderabad firm were:

Sri Mohammed Khan

Sri Fazulul Rahaman Khan

Sri Athaur Rahaman Khan

Sri Niyamathulla Khan,

Sri Mohammed Fazlulla Baig

Sri Mokhtyar Ahmed,

Sri Shafeeq

Mr. Mohammed Khan died on 14.10.2001. After his death the Guntur firm was reconstituted as follows:

Sri Azizul Rahaman Khan

Sri Fazulul Rahaman Khan

Sri Athaur Rahaman Khan

Sri Mustaq Ahmed

Sri Irfan Khan

Dr. Niyamathulla Khan

The partners 1, 2, 3, & 6 are brothers. They are the sons of Mohammed Khan. Partner No. 5 is the son of partner No. 2. Partner No. 4 is a relative.

The Hyderabad firm was reconstituted with seven partners and they are

Sri. Fazulul Rahaman Khan

Sri. Athaur Rahaman Khan

Dr. Niyamathullah Khan

Sri Mohammed Fazlulla Baig,

Sri Mokhtyar Ahmed

Sri Sahfeeq

Sri Sameer Khan

5 . The newly inducted Sh. Sameer Khan is the son of Sh. Niyamathulla Khan. The proportion in which the partners decided to share the profit & loss

in both these firms are not relevant for this purpose. It is the case of the appellant that there was a family arrangement on 30.08.2005 containing 14

clauses by which they agreed upon a territorial division with regard to exercise of their rights. Eight withdrawal letters with-drawing the applications

for registration, four by Dr. Niyamathullah Khan and four by Shri Fazulul Rahaman Khan were given and all were filed on 7.11.2005. It is the case of

the appellants herein that these withdrawal letters were given on the basis of the document dated 30.08.2005. The respondents complained that two of

the letters namely those pertaining to Application No. 1261887 in Class 14 and Application No. 1261890 in Class 14 were alleged to be fabricated. But

today they agree to stand by the with drawal and do not challenge it and in fact, all of them have filed fresh applications subsequently.

6 . The respondents' applications have been filed in the name of the partners of the Guntur firm, But the appellants' applications were only in the name

of two appellants themselves- the father and son, excluding the other partners. This is how the trouble started.

The applications and oppositions were taken up. The Registrar was of the opinion that when the applications in respect of Guntur firm include one

of the appellants herein, namely Dr. Niyamathullah Khan and when they are all joint owners, the opposition cannot be maintained and the opponents

cannot claim any exclusive right to trade in their names. And thus dismissed the oppositions.

8 . As regard to applications by the appellants for the Hyderabad firm, the Registrar directed that the applications should proceed to registration

including other names. The Registrar held that all the partners have equal rights to use the Trade mark and Logo as such partners. Repeatedly, the

order held that they have right to trade and enjoy equal rights among themselves as per the partnership deed in both the places. This order was passed

as observed in the order ""to maintain peace and harmony in the family"".

9 . The learned counsel for the appellant submitted that when the family settlement deed equally speaks of territorial demarcation in Class 5, the same

should be given effect to. According to the learned counsel for the appellant, the original of these documents are with the elder person of the family

namely Mr. Azizul Rahaman Khan and he did not produce it. Therefore, the appellant was constrained to produce the certified copy of the xerox copy

before the Registrar. When the respondent has not objected to it, then the respondent must abide by those terms.

1 0 . The learned senior counsel appearing for the respondent submitted that the respondents contention is that there was a clause 15 which is crucial

and the respondent do not admit that the custody was with Mr. Azizul Rahaman Khan. The appellant had submitted this confirming affidavit of one of

the witnesses, which is not accepted by the respondent since the witness is the brother-in-law of Dr. Niyamathullah Khan. The learned Senior

Counsel submitted that the Registrar can pass orders regarding the territorial division only on consent and not if it is contested. It was also submitted

that the truth and validity of the settlement deed and the question whether it was acted upon must be decided by Civil Court and not the authorities

under this Act. It was also submitted that there can be only one source of title for a Trade mark and therefore, the order of the Registrar relying on

the partnership deed shall not be interfered with.

The Registrar has considered the submissions made by both the parties at length and has raised three issues regarding a) the validity of the family

settlement b) Individual capacity to file the opposition and c) the right over the trade mark. The case of the appellant is that Mr. Azizul Rahaman Khan

has the custody of the original settlement deed and they have filed the affidavit of one of the witnesses. Mr. Azizul Rahaman Khan has not

specifically denied it and the respondents raised the issue regarding the trustworthiness of the witness who had sworn to the affidavit. However, the

Registrar had given a finding that the settlement deed is not valid because it is not registered. These are all disputed facts which have to be decided,

where witnesses have to be examined and cross examined, regarding the validity and genuineness of the documents dated 30.08.2005. The Registrar

is not competent to give a finding when facts are disputed. We set aside the findings of the Registrar regarding the document dated 30.08.2005 and

leave it to the parties to have this issue decided by the Civil Court.

1 2 . Now, we are left with only the two partnership deeds. The Registrar while passing the impugned order in OA/ 88 & 89/2009/TM/CH has rightly

held that all the partners of the Guntur firm are applicants. And therefore, the application shall be allowed to proceed to registration and the oppositions

dismissed. Dr. Niyamathullah is a joint proprietor in so far as the applications filed with regard to the application ns filed by the firms Guntur and

Hyderabad firm and Mr. Sameer Khan is a joint proprietor with regard to applications filed by the Hyderabad firm alone. When that is so, the question

whether Dr. Niyamathullah Khan and Mr. Sameer Khan are bonafide users does not arise. There is obviously some confusion in this regard while

deciding the order. The Registrar rightly held that all the partners of the Hyderabad firm should be included in the application filed as regards the

Hyderabad firm so that Impugned order directed the inclusion of the other partners who constituted the firm in Hyderabad. Once the Registrar had

held that the trade mark is a partnership asset of the firm then, the right of joint proprietor ship can be given only to the partners.

Therefore, the final conclusion in the orders challenged in OA/88 & 89/TM/CH is confirmed and the application shall be directed to allow to

proceed to registration in the name of six partners. All other observations regarding the prior user and adopter-if they arise in future cases shall be

dealt with individually, with regard to Dr. Niyamathullah Khan and Mr. Sameer Khan based on the pleadings and evidence. As regards OA/25/

TM/CH-2009 we are unable to understand why the Registrar included three more names, though they were not partners of the Hyderabad firm. Once

it is accepted, that only the partners shall have right to the mark as joint proprietors, the same has to be strictly applied to Guntur firm and Hyderabad

firm. Therefore, the applications in OA/25/2009/TM/CH shall be registered only in the names of the seven partners of the Hyderabad firm who are

Sri. Fazulul Rahaman Khan,

Sri. Athaur Rahaman Khan

Sri Niyamathullah Khan

Sri Mohammed Fazlulla Baig

Sri. Mokhtyar Ahmed

6 Sri ShafeeQur Rahaman Khan

Sri Sameer Khan

To this extent, the OA/25/2010/TM/CH is partly allowed. OA/88 & 89/2009 are dismissed. All those questions relating to territorial division and

the validity of the settlement cannot be decided here and may be raised for adjudication by the proper Forum. The findings of the Registrar in this

regard are set aside.