Case: Allied Industries, Jaipur West (Kedia Group) Vs Allied Industries, Jaipur South (Khemka Group). Trademark Tribunal

CounselFor Appellant: Mr. K.B. Marwah, Advocate and For Respondents: Mr. R.K. Anand, Advocate
JudgesM. R. Bhalerao, DRTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 12(1), 12(3), 56
Citation1986 (6) PTC 180 (Reg)
Judgement DateApril 10, 1986
CourtTrademark Tribunal

Judgment:

M. R. Bhalerao, DRTM

  1. These proceedings relate to an Application for Rectification, under Section 56, filed on 25th February, 1981 by Allied Industries (Jaipur West), 38-Industrial Area, Jhotwara Jaipur (hereinafter referred to as "the Applicants") to rectify the Register by removing therefrom the entry relating to Registered Trade Mark No. 304876B, in Class 11, in the names of Om Prakash Beni Prashad Khemka and Vishwanath Beni Prashad Khemka, trading as Allied Industries, Hawa Sarak, Jaipur South, Jaipur, Rajasthan (hereinafter referred to as "the Registered Proprietors). The trade mark in question consists of device which looks like a monogram of letters A and I and the words "ALLIED INDUSTRIES" appearing below that device. The grounds of the Application to rectify the Register are briefly as follows:-

    Four persons: namely (1) Shri Om Prakash Beni Prasad Khemka, Shri Vishwanth Beni Prasad Khemka, Shri Vishambhar Lal Shivdeo Kedia and Shri Sanwarmal Shivdeo Kedia formed two Partnership firms as (i) Allied Industries, Jaipur South and (ii) Allied Industries, Jaipur West, Due to some difference between them those four partners came to be divided into two groups as:

    First Group of (1) Shri Om Prakash Beni Prasad Khemka, and (2) Shri Vishwanath Beni Prasad Khemka.

    Second group of (1) Shri Vishambhar Lal Shivdeo Kedia, and (2) Shri Sanwarmal Shivdeo Kedia.

    (These groups will hereinafter be respectively referred to as "Khemka Group" and "Kedia Group").

  2. To settle their difference, Khemka Group and Kedia Group appointed arbitrators.

    According to Arbitration Award, Khemka group took over Allied Industries, Jaipur South and Kedia Group took over Allied Industries, Jaipur West.

    According to the Arbitration Award, both the groups were to have equal rights over the unregistered and registered trade marks and both the groups were to use those trade marks on their products.

    According to Arbitration Award, Khemka group was to make utmost efforts to transfer the unregistered and registered trade marks in the name of Kedia Group also; but, Khemka group allowed to lapse Registered Trade Mark No. 248454B which was joint property of both the groups and obtained registration of the same trade mark under No. 304876B in their own name.

    Registered Trade Mark No. 304876B is liable to be removed from the Register because its registration was obtained by fraud concealing that Khemka group alone were not its owners.

    The Applicants (Kedia Group) are the persons aggrieved because their right to use the impugned trade mark is taken away by the Registered Proprietors (Khemka Group).

  3. In their Counter-statement, the Registered Proprietors (Khemka Group) denied the allegations and statements made by the Applicants (Kedia Group). The Registered Proprietors (Khemka Group have further stated:

    "Arbitration Award has "never become rule of the Court as to acquire any legal recognition".

    Arbitration between the parties is not binding on the Registrar of Trade Marks because the Registrar is concerned with the purity of the Register bearing is mind public interest".

    The Application for Rectification is not filed in the prescribed manner.

  4. The evidence in support of Application for Rectification consists of one affidavit dated 21st October, 1982 by Shri Vishambhar Lal Shivdeo Kedia.

  5. The evidence in support of registration consists of one affidavit dated 1st June 1983 by Shri Vijay Bhargava and one affidavit dated 29 March, 1984 by Shri Om Parkash Khemka.

  6. The evidence in reply consists of one joint affidavit dated 1st August, 1984 by (1) Shri Vishambar Lal Shivdeo Kedia, and (2) Shri Sanwarmal Shivdeo Kedia.

  7. The Registered Proprietors had filed a Petition praying that Shri V. L. Kedia be cross-examined. By consent, that petition was allowed and Shri V. L. Kedia was cross-examined on 11th March, 1986. Verbatim report of Shri V. L. Kedia's Cross-examination also forms a part of the evidence in these proceedings.

  8. Hearing took place on 11th March, 1986 Shri K.B. Marwah, Advocate appeared for the Applicants. Shri Raj K. Anand, Advocate appeared for the Registered Proprietors.

  9. The Applicants are Kedia, group. The Registered Proprietors are Khemka group. The Applicants (Kedia group) main case is that according to Arbitration Award Khemka group and Kedia group were both to enjoy equal rights over the registered and un-registered trade marks and both the groups were to use these marks on their products and that Khemka groups were to make efforts to transfer unregistered and registered trade marks in the names of Kedia group also; but they allowed the registration under No. 248454B to lapse and obtained registration of the same trade mark under No. 304876B in their own name by concealing that they were not the exclusive proprietors thereof.

  10. The Registered Proprietors (Khemka group) case is that Arbitration award has "never become rule of the court as to require any legal recognition" They also contend that Arbitration between the parties is not binding on the Registrar because he is concerned with the purity of the Register bearing in mind public interest.

  11. In Rectification proceedings, firstly, the Applicants have to establish that they are the "persons aggrieved". "The persons who are aggrieved are it is held, all persons who are in some way or other substantially interested in having the mark removed- where it is a question of removal-from the Register: including all persons who would be substantially damaged if the mark remained, and all trade rivals owner whom an advantage was gained by a trader who was getting the benent of a registered trade mark to which he was not entitled". (Kerly's Law if Trade Marks and Trade Names, 11th Edn., para 11-07). The Applicants (Kedia group) claim some portion of property rights in the impugned registered trade mark by virtue of clauses 6 and 7 of the Arbitration Award. In their Counter-statement, the Registered Proprietors (Khemka Group) have not denied the existence or that Arbitration award. Their cause...

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