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I.T.A. No 2477/Ahd/2011 Assessment year: 2007-08 Under Section 28 of the Trade and Merchandise Marks Act on the registration of a trade mark in Part-A or B of the register, a registered proprietor gets an exclusive right to use the trade mark in relation to the goods in respect of which trade mark is registered and to obtain relief in respect of infringement of the trade mark in the manner provided by the Act. In the case of un-registered trade mark, Section 27(1) provides that no person shall be entitled to institute any proceeding to prevent, or to recover damages for, the infringement of an unregistered trade mark. Sub-section (2) of Section 27 provides that the Act shall not be deemed to affect rights of action against any person for passing off goods as the goods of another person or the remedies in respect thereof. In other words in the case of un-registered trade marks, a passing off action is maintainable. The passing off action depends upon the principle that nobody has a right to represent his goods as the goods of some body. In other words a man is not to sell his goods or services under the pretence that they are those of another person [Emphasis, by underlining, supplied by us]

5. This Affidavit is therefore sworn to carryout necessary changes in the name of Registered Proprietor on record with the Trade Mark Registry.

What is stated above is true to the best of my knowledge, information and belief."

8. The beneficial ownership of the trademark cannot therefore be in any dispute, inasmuch as admittedly the former owner of the registered trademark had assigned all his rights, as seen above, and the assessee was carrying on the business in that name. The entire business was transferred to the assessee as a going concern and the assessee was, effective 7 th September 2006, conducting the business as such. Once the assessee was carrying on the business as such under the same trademark and as a going concern, the effective use of the trademark cannot be disputed. This intangible asset was an integral part of the business carried on by the assessee, and, by no stretch of logic, it could be seen I.T.A. No 2477/Ahd/2011 Assessment year: 2007-08 in isolation with the business as a whole. The fact that the trademark was not registered in the name of the assessee did not affect assessee's valuable rights, as noted by Hon'ble Supreme Court above, that none else can pass off the goods or services under the pretence that it belonged to the trademark owned by the assessee. Even in the case of the unregistered trade mark, thus, the assessee does have valuable rights which make it an intangible asset eligible for depreciation. In any event, the admissibility of depreciation on trademark is not contingent upon its registration inasmuch as the description of intangible asset in Part B of the deprecation schedule describes the same merely as "know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature". The only thing that the assessee did not have right for, as the trademark was not registered in the name of the assessee at that point of time, was the right to obtain relief in respect of infringement of the trade mark in the manner provided by the Act, but then this limitation of right was only transitory as the process of transfer of trademark was already initiated.