Gujarat High Court
Kaveri Hotels Private Limited - ... vs Intellectual Property Appellate on 4 October, 2013
Author: Anant S.Dave
Bench: Anant S. Dave
KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI....Petitioner(s)V/SINTELLECTUAL PROPERTY APPELLATE BOARD C/SCA/13630/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 13630 of 2013 =============================================== KAVERI HOTELS PRIVATE LIMITED - PRESENTLY KNOWN AS CHOUKI....Petitioner(s) Versus INTELLECTUAL PROPERTY APPELLATE BOARD & 2....Respondent(s) =============================================== Appearance: MR TUSHAR METHA SR. ADVOCATE with PRATIK Y JASANI, ADVOCATE for the Petitioner(s) No. 1 MR SK BANSAL with HARSHADRAY A DAVE, ADVOCATE for the Respondent(s) No. 2 =============================================== CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 04/10/2013 ORAL ORDER
1. Heard learned advocates for the parties.
2. Mr. Tushar Mehta, learned senior counsel with Mr. P.Y. Jasani, learned advocate for the petitioner contends that the applicant is a bonafide adopter, user and proprietor of the Trade Mark (logo) containing and consisting of the words Chouki Dhani and filed an application for registration in Clause 30 on 26.4.2002 before respondent No.3 under Section 18 (1) of the Trade and Merchandise Marks Act, 1958. Another application was filed by the petitioner on 24.5.2005 in Clause 42 to register the Trade Mark Chouki Dhani with respondent No.3. However, one Mr. Gulraj Vaswani filed various applications under the name of Choki Dhani at Jaipur and seeking registration before respondent No.3. Thereafter many other applications were filed by Mr. Gulraj Vaswani. They were opposed by petitioner as required under Trade Marks Act, 1999 (for short Act of 1999 ). However, respondent No.2 herein claimed transfer of the Trade Mark Choki Dhani by virtue of unregistered agreement for taking over of business dated 8th April 2004 between Mr. Gulraj Vaswani and respondent No.2. Accordingly, application No. 1073208 in Clause 30 was submitted for correction of an amendment of the name of the applicant on 9th April, 2004.
2.1. It is therefore, submitted by Mr. Tushar Mehta, learned senior counsel that acceptance of such an application by respondent No.3 and confirmed in appeal by respondent No.1 is not only illegal per se but contrary to provisions of Trade Marks Act, 1999 and respondent No.1 erred in applying provisions of Code of Civil Procedure Order 6 Rule 17 and while rejecting an appeal passed almost non-speaking order by assigning the reason of no disadvantage or irreparable loss to the petitioner herein and appellant therein as there was no material change in the applicant which would cause any irreparable loss to the appellant. Learned senior counsel also referred to provisions of Sections 20, 21, 22 and 23 and Chapter V containing Sections 37, 38, 39, 40, 41, 42, 43 of the Act, 1999 and contended that by allowing the application the respondent-Registrar and the Board have substituted the application without considering the provisions. It is therefore, submitted that respondent No.2 under no circumstances could have been allowed to replace Mr.Gulraj Vaswani in absence of any legal right and, therefore, the prayer of the petition be granted.
3. As against above, Mr.S.K. Bansal, learned counsel with Mr.H.A. Dave, learned advocate for respondent No.2 would contend that by virtue of an agreement to transfer a take over business dated 8.4.2004 of rights in immovable and intangible words including goodwill rights, brand value, patent and trade mark registration (in process) stood transferred and deemed to have vested in the purchaser from 1.4.2004 and that by virtue of Section 39 of the Act, 1999 an unregistered trade mark may be assigned or transmitted with or without the goodwill of the business concerned. It is submitted that in acceptance of application for amendment/correction by respondent No.3 and confirmed by respondent No.1 do not deserve any interference in exercise of powers under Article 226 of the Constitution of India and the applications for registration of trade mark were filed by Gulraj Vaswani who transferred all his business. As per the above agreement the respondent No.2 stepped into shoe and inherited all rights and also liabilities as per the above agreement including to submit an application to correct the name before respondent No.3. Learned counsel for respondent No.2 would contend that nothing in the Trade Mark Act, 1999 and Rules 2002 will prohibit such an amendment and correction and, therefore, the matter deserves to be rejected in absence of any reply on the part of respondent No.3 and respondent No.1 in exercising the powers conferred by the Act.
4. Upon prima facie consideration of the record and submissions of learned counsels appearing for the parties and on perusal of the sections contained in Chapter III and V of the Act, 1999 and an application for correction and amendment under Section 22 of the Act and provisions of registration under Section 21 and nature of grounds and reasoning advanced by respondent No.1-Board about irreparable loss, hardships or disadvantage to the appellant, petitioner herein along with applicability of Order 6 Rule 17 of CPC, at this stage I am inclined to admit this petition for final decision.
5. Accordingly, Rule returnable on 12.12.2013.
6. Mr. H.A. Dave, learned advocate, waives service of rule on behalf of respondent No.2.
7. Interim relief in terms that further proceedings be stayed till final disposal.
8. Direct service is permitted.
(ANANT S.DAVE, J.) SMITA Page 4 of 4