Central Information Commission
Dhyananjay Anil Madwanna vs Office Of The Controller General Of ... on 27 April, 2022
Author: Saroj Punhani
Bench: Saroj Punhani
के ीय सूचना आयोग
Central Information Commission
बाबागंगनाथमाग , मुिनरका
Baba Gangnath Marg, Munirka
नई द ली, New Delhi - 110067
File No : CIC/CGPDT/A/2021/614967
Dhyananjay Anil Madwanna ......अपीलकता /Appellant
VERSUS
बनाम
CPIO,
Sr. Examiner of Trade Marks &
GI (SETM), Trade Mark Registry, RTI Cell,
Boudhik Sampada Bhawan, S.M.Road,
Antop Hill, Mumbai - 400037, Maharashtra. .... ितवादीगण /Respondent
Date of Hearing : 26/04/2022
Date of Decision : 26/04/2022
INFORMATION COMMISSIONER : Saroj Punhani
Relevant facts emerging from appeal:
RTI application filed on : 19/03/2021
CPIO replied on : 24/03/2021
First appeal filed on : 06/04/2021
First Appellate Authority order : 08/04/2021
2nd Appeal/Complaint dated : 22/04/2021
Information sought:
The Appellant filed an online RTI application dated 19.03.2021 seeking the following information:
1. Can a private non-profit Company (NUN registered under Section 8 of the Companies Act, 2013 apply for and register a certification trademark under Section 71 of the Trademarks Act, 1999?1
If not, what is the legal prevision that prevents such registration?
2.If yes.
i. Under which Trademark class should the certification mark be filed? ii. Should the mark be filed under the class which includes the certification process )which is our actual business)?
iii. Or should the mark he filed under the class of Hotels, establishments, etc. {which are the places to whom our certificate is granted)?
3. Can an NGO frame regulations as required under Section 71 and 74 of the Trademarks Act, 1999?
If not, what is the legal provision that prevents such framing of regulations?
4. Can words be registered as certification Trademark along with the image?
5. If such a registration is granted after submission of application along with the regulation (as per Section 71 and 74 of the Trademarks Act, 1999), can an amendment be made in the regulations at a later stage?
The CPIO replied to the appellant on 24.03.2021 stating as follows:-
"Application filed for the registration of Trade Marks is being carried out as per the provision of Trade marks Act, 1999 & the rules framed thereunder. Request sought in the RTI application is kind of opinion & not the information as per the provision of U/S 2(F) of the RTI Act, 2005."
Being dissatisfied, the appellant filed a First Appeal dated 06.04.2021. FAA's order dated 08.04.2021 held as under:-
1. Regarding registration of private non-profit company (NGO) registered under Section 8 of the Companies Act, 2013 refers to the Registrar of Companies, you will have to write to them for the appropriate answer. With regards to registration of certification trademark under Section 71 of the Trade Marks Act, 1999, attention is invited to (2)(e) "certification trademark" means a mark capable of distinguishing the goods or services in connection 'with which it is used in the course of trade which are certified by the proprietor of the mark in respect of origin, material, mode of manufacture of goods or performance of services, quality, accuracy or other characteristics from goods or services not so certified and registrable as such under Chapter IX in respect of those goods or services in the name, as proprietor of the certification trademark, of that person;
Further your attention is invited to Section 18 of the Trade Marks Act, 1999 for filing application for registration of trademark
2. Refer to para I as above 2
3. In case, any NGO qualifies for seeking registration of certificate trademark, Section 74 will come into force.
4. Yes
5. Your attention is invited to Section 22 of the Trade Marks Act, 1999 regarding Correction and Amendment of Application.
Feeling aggrieved and dissatisfied, appellant approached the Commission with the instant Second Appeal.
Relevant Facts emerging during Hearing:
The following were present:-
Appellant: Present through video-conference.
Respondent: Ranjeet Kumar Tripathi, Examiner of Trade Marks & GI/CPIO present through video-conference.
The Appellant expressed his dissatisfaction with the CPIO's reply by raising following arguments -
"....The appellant had sought information about some practical aspects and procedural information about the registration of certification trademark. Certification Trademarks are rarely filed in the Trademark Office and even trademark professionals do not have the exact knowledge about its registration procedure. The appellant, before filing the RTI application, contacted the Office of Trademark numerous times to ask for the same information but to no avail. The office was reluctant to provide oral information. Hence, the appellant had filed the RTI to derive this information from the Trademark Office. After rejection by the CPIO, the First Appellate Authority, in his reply, has only replied with certain sections from the Trademark Act, 1999 which is already available in the public domain and has not clarified about the procedural information sought. The information given is incomplete and unsatisfactory. Hence, the object of filing the RTI application remains unfruitful. This Hon'ble Central Information Commissioner may refer to the appellant's other grounds of appeal in the second appeal memo..."
The CPIO invited attention of the bench towards his written submission dated 21.04.2022, relevant extracts of which is reproduced as under -
".....At the same time it may be noted that the kind of information sought under your RTI request is in the form of seeking opinion of CPIO as the information relates to general question of law relating to relevant provisions of 3 the Trade Marks Act, 1999 and the Trade Marks Rules, 2017 and its interpretation of law.
CPIO is not generally expected to provide this kind of opinion on general questions of law or interpretation of law. He is only authorised to provide information/opinion available in material forms under control or public authority. The opinion requested by you is not available in material forms Under the control of Trade Marks Registry, Mumbai branch.
I may refer to the decision of the Hon 'ble Supreme Court of India in the case of "Central Board of Secondary Education & Anr. V. Aditya Bandopadhyay & Ors., (2011) 8 SCC 497 where the Hon'ble Court categorically observed as follows -
xxxxxxxxxxxxxxxxxx However, as the information sought by you relates to general question of law or interpretation of law, you may kindIy refer to the provisions of relevant law on the subject including following-
I) Relevant Sections of the Trade Marks Act, 1999
2) Relevant Rules of the Trade Marks Rules, 2017
3) Prescribed Forms under the above said rules
4) Requisite fees as prescribed in the First Schedule of the Trade Marks Rules, 2017.
It is worth mentioning that the above law provisions are already in the public domains where the public has an unrestricted access. Furthermore, copy of the Trade Marks Act, 1999, the Trade Marks Rules, 2017 along with respective Forms and the Prescribed Fees under the First Schedule are also available on the official Website ipiindia.gov.in which may kindly also be referred to.
It is pertinent to submit that First Appeal against the aforesaid information of the CPIO was received by this office dated 06/0,1/2021 and same was disposed of by appellate authority dated 08/04/2021....."
Lastly, the CPIO further apprised the Commission that the weblink of the Respondent public authority contains exhaustive information/details pertaining to trade marks registrations and ancillary procedure which are user friendly and can be easily accessed by the information seeker. Decision:
The Commission based on a perusal of the facts on record and after hearing submissions of both the parties at great length finds no scope of action in the matter with respect to the information that has been sought for in instant RTI 4 Application as well as the reply of the CPIO provided thereon as the queries raised by the Appellant do not conform to Section 2(f) of the RTI Act.
The Appellant has sought for clarifications and deductions to be provided based on his interrogatories, yet the CPIO has informed about the factual information and detailed clarifications touching upon the technicalities during hearing to assist the Appellant which is in the spirit of RTI Act.
The Appellant shall note that outstretching the interpretation of Section 2(f) of the RTI Act to include deductions and inferences to be drawn by the CPIO is unwarranted as it casts immense pressure on the CPIOs to ensure that they provide the correct deduction/inference to avoid being subject to penal provisions under the RTI Act.
In this regard, his attention is also drawn towards a judgment of the Hon'ble Supreme Court on the scope and ambit of Section 2(f) of RTI Act in the matter of CBSE vs. Aditya Bandopadhyay & Ors [CIVIL APPEAL NO.6454 of 2011] wherein it was held as under:
"35. At this juncture, it is necessary to clear some misconceptions about the RTI Act. The RTI Act provides access to all information that is available and existing. This is clear from a combined reading of section 3 and the definitions of `information' and `right to information' under clauses (f) and (j) of section 2 of the Act. If a public authority has any information in the form of data or analysed data, or abstracts, or statistics, an applicant may access such information, subject to the exemptions in section 8 of the Act. But where the information sought is not a part 5 of the record of a public authority, and where such information is not required to be maintained under any law or the rules or regulations of the public authority, the Act does not cast an obligation upon the public authority, to collect or collate such non- available information and then furnish it to an applicant. A public authority is also not required to furnish information which require drawing of inferences and/or making of assumptions. It is also not required to provide `advice' or `opinion' to an applicant, nor required to obtain and furnish any `opinion' or `advice' to an applicant. The reference to `opinion' or `advice' in the definition of `information' in section 2(f) of the Act, only refers to such material available in the records of the public authority. Many public authorities have, as a public relation exercise, provide advice, guidance and opinion to the citizens. But that is purely voluntary and should not be confused with any obligation under the RTI Act." Emphasis Supplied 5 ADVISORY A pertinent issue emanating from the instant case and similar nature of cases dealt with by this bench in the recent past is that a number of RTI Applications are being filed for seeking clarifications on various policy/ procedure matters of Public Authorities. It will be in the best interest of SETM & GI to explore the viability of introducing/updating a FAQs Section on their website wherein the most commonly sought issues/clarifications can be identified and relevant information in that regard can be placed in the public domain in keeping with the letter and spirit of suo motu disclosures prescribed under Section 4 of the RTI Act. This will also relieve the public authority from the burden of RTI Applications which are filed for merely seeking clarifications and not any specific record. In pursuance of the aforesaid advisory, the CPIO is directed to place a copy of this order before their competent authority for taking appropriate action.
The appeal is disposed of accordingly.
Saroj Punhani (सरोजपुनहािन) हािन) Information Commissioner (सूचनाआयु ) Authenticated true copy (अिभ मािणत स#यािपत ित) (C.A. Joseph) Dy. Registrar 011-26179548/ [email protected] सी. ए. जोसेफ, उप-पंजीयक दनांक / 6