Delhi High Court
Akal Mechanical Works vs Paras Special Machine Co. And Ors. on 31 January, 1997
Equivalent citations: 1997IIAD(DELHI)173, 65(1997)DLT945, (1997)116PLR29
Author: M.S.A. Siddiqui
Bench: M.S.A. Siddiqui
JUDGMENT M.S.A. Siddiqui, J.
(1) This appeal is directed against the order dated 16.6.1995passed by the Deputy Registrar of Trade Marks, whereby he allowed the interlocutory application dated 6.3.1995 filed by the respondent for withdrawal/cancellation of the notification published in the Trade Marks General No. 1074 dated1.3.1994 with regard to the registered Trade Mark No. 285245 in the names of GopalSingh and Avtar Singh, trading as M/s. Akal Mechanical Works, Ludhiana and for maintenance of statue quo till disposal of the rectification proceedings.
(2) Brief facts giving rise to this appeal are that Gopal Singh (one of the partners of the appellant-firm) and Gurcharan Singh (one of the partners of the respondentfirm) were joint proprietors of the registered Trade Mark No. 2825 ("Paras Special")trading as M/s. Akal Mechanical Works, Ludhiana. On 7.8.1992, the respondent filed an application for rectification which was resisted by the appellants. On13.5.1993, the appellant presented an application on form Tm 24 before the Registrar for removal of the name of the respondent No. 2 for the certificate of registration as one of the proprietors of the disputed trade mark. This application was allowed and name of the appellant No. 2 was removed from the certificate of registration without any notice to him. Thereafter, the respondent No. 2 filed an application before the Registrar contending that the order of removal of his name from the register as one of the joint proprietors of the trade mark was obtained on the basic of a forged document with the object of depriving him of his rights in the trade mark and that the order was made by the Registrar without any notice or information to him and was therefore illegal and void. By the impugned order, the deputy Registrar cancelled the order of removal of the respondent No. 2's name from the certificate of registration and ordered for maintenance of status quo till the decision of there ctification proceedings. Aggrieved by this order, the appellant has come up in appeal before this Court.
(3) It is beyond the pale of controversy that the respondent No. 2 was one of the proprietors of the disputed registered trade mark and the order of removal of his name from the certificate was made without any notice or information to him.Learned Counsel for the appellant contends that it was not obligatory on the part of the Registrar to issue notice to the respondent No. 2 before making an order on the application presented by the appellant on Form Tm (4) He also submits that the rules framed under the Trade and Merchandise Marks Act (for short the 'Act') have delberately made no provision of notice on such applications. In my opinion, the point raised by the learned Counsel is no longer res integra as it has been held by this Court in R. Kishan v. Assistant Registrar Trade Marks, that IT is implicit in the Rules framed under the Act that when an application of assignment or transmission is made by some persons in respect of a trade mark in which the names of certain other persons are shown as registered proprietors, before any action is taken on that application, the persons whose names are already on the register must have notice of that application. It has to be borne in mind that the alteration in the certificate of registration was not merely in the nature of correction of a typographical error or mistake in the recording of entry. The alteration consists in removing the name of respondent No. 2 from the certificate of registration as one of the proprietors of the trade mark and, therefore, seriously affects the proprietory rights of the respondent No. 2. An order involving such serious consequences could not be passed without complying with the elementary requirements of rules of natural justice. It is well settled that an order made without regard to the principles of natural justice is void. Since the order of removal of the name the respondent No.2 from the certificate of registration was made in contravention of the principles of natural justice, the Deputy Registrar has not committed any illegality in withdrawing the said order, which was void and illegal. In my considered opinion, the impugned order, does not suffer from any legal infirmity warranting an interference from this Court.In the result, the appeal is dismissed. No order as to costs.Appeal dismissed.