Punjab-Haryana High Court
M/S Bharat Gluco Industries Pvt. Ltd vs Union Of India And Ors on 28 October, 2014
Author: K. Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.21013 of 2011 (O&M)
Date of decision: 28.10.2014
M/s Bharat Gluco Industries Private Limited, Shiv Shakti Rice
Mills, Link Road, Taraori, District Karnal, Haryana, through its
authorised signatory Ramesh Chand Gupta, Director.
... Petitioner
versus
Union of India through Secretary, Ministry of Corporate Affairs,
New Delhi, and others.
.... Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. Ashwani Talwar, Advocate,
and Ms. Sanamjeet Kaur, Advocate,
for the petitioner.
Mr. Karminder Singh, Advocate,
for respondents 1 and 2.
Mr. Harish Sharma, Advocate,
for respondent No.3.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J.(Oral)
1. The writ petition challenges the order passed by the Regional Director, Corporate Affairs, upholding an objection taken by M/s Parle Products Private Limited that the name of the petitioner's Company must be changed since the name is similar to SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document Civil Writ Petition No.21013 of 2011 (O&M) -2- the trade mark of its product. The petitioner's name was Bharat Gluco Industries Private Limited and the objector M/s Parle Products Private Limited was complaining that the petitioner- Company had an expression "Gluco" in the name of the Company which was registered trade mark of M/s Parle Product Private Limited.
2. The petitioner is a registered Company with the Registrar of Companies Act in the year 2005 and a notice and action taken in the year 2008 by M/s Parle Product Private Limited has resulted in a decision that was taken on 15.07.2011 directing the petitioner to change the name. The learned counsel for the petitioner cites before me instances of several companies which have "Gluco" attached to the name or its products and there have been no objection taken in that regard. The petitioner also states that the Company is not in the business of manufacture and it does not manufacture any goods or market any product that carries the respondents trade mark "Gluco".
3. The counsel for the Company would state that the respondent's product is registered as a trade mark by its name Gluco and it has obtained wide public acceptance and credibility since the year 1948. There cannot be any registration of the name of a Company which is similar or closely resembling a registered trade mark. The counsel would refer to the history of amendment to the SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document Civil Writ Petition No.21013 of 2011 (O&M) -3- Companies Act that included a proviso by the Trade Mark Act of 1999 w.e.f. 05.09.2003 and the provision reads thus:-
"22. RECTIFICATION OF NAME OF COMPANY (1) If, through inadvertence or otherwise, a company on its first registration or on its registration by a new name, is registered by a name which-
(i) in the opinion of the Central Government, is identical with, or too nearly resembles, the name by which a company in existence has been previously registered, whether under this Act or any previous companies law, the first mentioned company, or
(ii) on an application by a registered proprietor of a trade mark, is in the opinion of the Central Government identical with, or too nearly resembles, a registered trade mark of such proprietor under the Trade Marks Act, 1999, such company,
(a) may, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name;
and SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document Civil Writ Petition No.21013 of 2011 (O&M) -4-
(b) shall, if the Central Government so directs within twelve months of its first registration or registration by its new name, as the case may be, or within twelve months of the commencement of this Act, whichever is later, by ordinary resolution and with the previous approval of the Central Government signified in writing, change its name or new name within a period of three months from the date of the direction or such longer period as the Central Government may think fit to allow. Provided that no application under clause (ii) made by a registered proprietor of a trade mark after five years of coming to notice of registration of the company shall be considered by the Central Government. (emphasis supplied) (2) If a company makes default in complying with any direction given under clause (b) of sub-section (1), the company, and every officer who is in default, shall be punishable with fine which may extend to one thousand rupees for every day during which the default continues."
4. The counsel would therefore argue that any Company that bears resemblance to a registered trade mark ought to therefore SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document Civil Writ Petition No.21013 of 2011 (O&M) -5- also be understood as having a name which is objectionable and the competent authority will be justified in directing a change of registration. This Section is required to be read with Section 20 and it is also reproduced. The Section provides for objection by the owner of a trade mark that a particular name of the Company has been registered with undesirable name, the undesirability being the name of a Company which bears the trade mark. The said Section is as follows:-
"20. COMPANIES NOT TO BE REGISTERED WITH UNDESIRABLE NAMES (1) No company shall be registered by a name which, in the opinion of the Central Government, is undesirable. (2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearly resembles,-
(i) The name by which a company in existence has been previously registered, or
(ii) a registered trade mark, or a trade mark which is subject of an application for registration, of any other person under the Trade Marks Act, 1999,may be deemed to be undesirable by the Central Government within the meaning of sub-section (1).
SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document Civil Writ Petition No.21013 of 2011 (O&M) -6- (3) The Central Government may, before deeming a name as undesirable under clause (ii) of sub-section (2), consult the Registrar of Trade Marks.
Sub-sections (2) and (3) substituted for sub-section (2) by the Trade Marks Act, 1999. Prior to its substitution, sub-section (2) read as under :
"(2) Without prejudice to the generality of the foregoing power, a name which is identical with, or too nearly resembles, the name by which a company in existence has been previously registered, may be deemed to be undesirable by the Central Government within the meaning of sub-
section (1)."
5. In clause (2), the Company which is identical with or merely resembles a registered trade mark itself is deemed to be undesirable by the Government within the meaning of Sub Section (1). The congruity to the name of the Company of what it contains with the name of a trade mark comes within the undesirable name contemplated under Section 20. In this case, there can be no dispute at all of the fact that the petitioner has in its name a product too well known in the minds of public and associated with glucose through a brand name Gluco which is an innovation of M/s Parle Product Private Limited. The person who has complained of violation and SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document Civil Writ Petition No.21013 of 2011 (O&M) -7- seeks for change cannot be compelled to go after every Company that bears resemblance to its trade mark or its Company name. Though the counsel would show to me several names of Companies or products through the information secured under Right to Information Act that carry Gluco either as a product name or a word incorporated in the name of the Company, that cannot by itself be a ground to justify that the petitioner could carry with the name. An owner of a brand may have objection of a Company which carries large scale operations and whose presence is felt in the market. He may have cause for a complaint against only a big time operator who is visible, while he may not make notice of the small time player who could pose no business threat or rivalry in the market. The owner of a trade mark must have liberty to choose his opponent who can widely affect his business and whose presence might give a misleading information about a wrong association of the name of the company with the trade mark. If M/s Parle Products therefore picks up the petitioner who boasts of large scale operations running to `50 crores per year, then M/s Parle Products would be justified in pointing out to the name Gluco found in the petitioner's Company name as an objectionable name.
6. The counsel for the petitioner points out that the change in the name is directed to be made merely 6 years after its registration while the law contemplates either an action within a SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document Civil Writ Petition No.21013 of 2011 (O&M) -8- period of 1 year from its registration or 5 years from when an objector has knowledge of the name. It is not an issue of Government itself acting. It is an objection through a person who has brought out his objections well within 5 years. The delay by the Government in passing the order cannot vitiated the order passed by him.
7. The counsel also points out that the petitioner is not merely a manufacturer of glucose products but also a manufacturer of Cattle Feed etc. The petitioner may manufacture anything and may not even manufacture glucose. That is not the issue; the issue is, that the petitioner carries as its name of the Company a well known marketed trade mark that makes it come within the mischief of the expression 'undesirable name of the Company'. The order passed is sustained and the writ petition is dismissed.
(K.KANNAN) JUDGE 28.10.2014 sanjeev SANJEEV KUMAR 2014.11.14 11:29 I attest to the accuracy and integrity of this document