Case: Faberge, New York Vs Sir Gokal Chand Narang & Co. Pvt. Ltd., Delhi. Trademark Tribunal
| Counsel | For Appellant: Mr. P.N. Sewak and Mr. Roma Bhagat, Advocates instructed by S/Shri Remfry & Son and For Respondents: Mr. Kanwal Krishan and Mr. Sudarshan Bhatia, Advocates |
| Judges | M. R. Bhalerao, DRTM |
| Issue | Trade & Merchandise Marks Act, 1958 - Sections 46 (1)(a), 46(1)(b) |
| Judgement Date | September 12, 1989 |
| Court | Trademark Tribunal |
Judgment:
M. R. Bhalerao, DRTM
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These proceedings relate to: -
Interlocutory petition filed on 12-12-86, and
A request on Form TM-16 filed on 26-12-86 by the applicants for Rectification in Rectification No. Del-221 proceedings in respect of Regd. Trade Mark No. 235568.
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The prayer made in the said request is that the Applicants/Petitioners be allowed to amend their applications for Rectification and statement of the case by adding three paragraphs contained in their said request on Form TM-16 filed on 26.12.86. Briefly the paragraphs sought to be incorporated relate to the following grounds: -
That the impugned registration would be a hindrance to the applicants/Petitioners' business and registration.
Additional ground based on Section 46(1) (a) of the Act.
Additional ground based on Section 46(1) (b) of the Act.
Briefly, the grounds, as stated in the said petition, are as follows: -
That due to inadvertence the Applicants failed to set out the grounds sought to be incorporated.
That in view of the statement made by the Applicants/Petitioners in their Application for Rectification that the craved leave to add any new ground it is just and necessary that their request should be permitted.
That irreparable loss of or injury would be caused to Applicants/Petitioners, if their request is refused.
That in the interest of natural justice, equity and fair play, the amendment should be allowed.
That there was a proposal for a settlement which fell through and hence amendment is sought at this stage.
That in view of special circumstances as set out above, the amendment should be allowed.
The Regd. Proprietor/Respondents have registered to allow the said requests. Briefly their comments are as follows: -
That the said petition is not maintainable, as it is against law and facts and it is abuse of the process of the Court.
That the petition has been filed after thirteen years and seven months after the filing of the Application for Rectification.
That the said petition is an after thought and it is unjustified.
That the Applicants/Petitioners have no grounds to seek the proposed amendment.
That the principles of equity. Justice and good conscience are in favour of the Regd. Proprietors/Respondents.
In support of his contention that such amendments are permissible, Shri Sewak learned counsel for the applicants/ petitioners pointed out that in F. Hoffman-La Boche and Co. Ltd. v. Geoffrey Manners and Co. Pvt. Ltd. (AIR 1970 SC 2062 at P. 2065. para 5) a reference...
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