Karnataka High Court
Prakash Packers And Movers Pvt. Ltd vs The Regional Director on 20 September, 2018
Author: R Devdas
Bench: R.Devdas
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON' BLE MR.JUSTICE R.DEVDAS
W.P.NOs.34094-34095 OF 2011 (GM-RES)
BETWEEN
PRAKASH PACKERS AND
MOVERS PVT. LTD.
A COMPANY INCORPORATED
UNDER THE COMPANIES ACT, 1956,
HAVING ITS REGISTERED OFFICE AT
NO. 1, PRAKASH COMPLEX,
3RD CROSS, KALASIPALYAM NEW
EXTENSION, BANGALORE- 560 002
REPRESENTED HEREIN BY ITS
MANAGING DIRECTOR
MR. SANJAY AGARWAL.
... PETITIONER
(BY SRI. MAYANK JHUNJHUNWALA, ADV. FOR
NDS LAW PARTNERS, ADV.)
AND
1. THE REGIONAL DIRECTOR
MINISTRY OF CORPORATE AFFAIRS,
SOUTHERN REGION,
3-5-3982, 2ND FLOOR,
CPWD BUILDING,
KENDRIYA SADAN SULTAN,
BAZAR, KOTI,
HYDERABAD-500 195.
2. M/S PRAKASH PACKERS AND MOVERS,
6, ACME INDUSTRIAL PARK,
I B PATEL ROAD, GOREGOAN(E),
MUMBAI 400 063
2
REPRESENTED HEREIN
BY ITS PROPRIETOR,
MR. SAT PRAKASH GUPTA
@ MR. SAT PRAKASH O GUPTA.
... RESPONDENTS
(BY SRI. S.A. KHADRI, CGC FOR R1
SRI. PRAKASH SALMANI, ADV. FOR
SRI. SATISH GIRJI ASSTS, ADVS. FOR R2)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 AND 227 OF THE CONSTITUTION OF
INDIA PRAYING TO SET-ASIDE THE IMPUGNED ORDER
DT 6.6.11 PASSED BY THE RESPONDENT NO.1 VIDE
ANNEXURE-G AND ETC.
THESE PETITIONS COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
R.DEVDAS J., (ORAL):
The petitioner is a company incorporated under the Companies Act, 1956 and established in the year 2005. The petitioner is involved in the business of packing and moving goods and it is claimed that the petitioner is a popular brand in the business of logistics. It is contended by the petitioner that the respondent No.2 was initially an agent of the petitioner, who established an industry in the same name of M/s.Prakash Packers and Movers, at Mumbai during the year 1999-2000. However, it is 3 contended by the learned counsel for the petitioner that even before its incorporation under the Companies Act, petitioner has established business at Bengaluru from 1995. It was also submitted that there is no dispute on the aspect that the respondent No.2 was indeed an agency working for the petitioner before the 2nd respondent established its business at Mumbai. It is also submitted that there is no dispute on the fact that the petitioner was running the business in the name of M/s.Prakash Packers and Movers Pvt. Ltd., from April, 1995.
2. When that being the case, the 2nd respondent seems to have initiated proceedings under Section 22 of the Companies Act, 1956, before the Regional Director, Ministry of Corporate Affairs, Southern Region, Chennai. By order dated 6.6.2011, the Regional Director passed an order in REF. No.4/22/B-8/2008 directing the petitioner company to change its name as per the procedure laid down under the Companies Act 1956. The petitioner sought for some correction in the order dated 6.6.2011 and therefore a corrigendum was issued on 14.6.2011 in REF. No.4/22/B-8/2008. The petitioner has called in question the orders passed by the Regional Director, 4 which is produced as Annexures- G & H to the writ petitions.
3. Sri Mayank Jhunjhunwala, learned counsel for the petitioner submits that subsequent to the institution of the present writ petitions, the petitioner has produced certain documents on 13.8.2012 before this Court. Attention of this Court is drawn to an order on notice of motion dated 28.3.2012 in Suit No.2075/2007, passed by the High Court of Judicature at Bombay, under its original jurisdiction. It is submitted by the learned counsel for the petitioner herein (defendant in the above mentioned suit before the judicature at Bombay) that the plaintiff i.e., 2nd respondent herein had moved the notice of motion, on which this order has been passed by the High Court of Bombay. Having taken note of the fact that the petitioner herein had established its business from the year 1995 and it had been trading under the firm name and style of M/s. Prakash Packers and Movers, the action for passing off in respect of the plaintiff therein was declined. It was also noted by the High Court of Bombay that defendant No.2 i.e., petitioner herein is also a director of a Company M/s. Prakash Packers and Movers 5 Private Limited, which, by deed of assignment dated 1.6.2007 assigned the exclusive use of the sole proprietary rights, title and interest in the mark along with goodwill of the entire business concern to defendant No.1 therein.
4. Having considered the case elaborately, the notice of motion moved by the respondent No.2 herein was dismissed. Learned counsel has also produced a copy of the order dated 08.05.2012 passed by the Intellectual Property Appellate Board (for short IPAB), circuit bench sitting at Mumbai in MP Nos.175/2009 and 138/2010 in ORA/60/2008/TM/MUM & ORA/60/2008/ TM/MUM/ 3557, wherein the issue of trade mark and use of the name M/s. Prakash Packers and Movers along with the logo "flying bird" was considered by the competent authority i.e., IPAB. The original application filed by the petitioner herein was allowed by the IPAB, which is the competent authority to deal with the matters of trade mark. Consequently the respondent No.2 herein was directed to remove the impugned trade mark bearing No.1105671 in Clause 16.
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5. It is therefore clear that the petitioner herein has succeeded before the competent authority in getting the user of the trade mark adjudicated in its favour. Regard being had to the fact that the competent authority has decided the question as between the parties herein, the impugned order which runs counter to the decision of the competent authority, deserves to be set aside.
6. For the reasons stated above, this Court is of the opinion that the petitions deserve to be allowed. The impugned orders at Annexures-G & H are hereby quashed and set aside.
The petitions are accordingly allowed. No order as to costs.
SD/-
JUDGE KLY/