Pazhancottai Match Factory A Firm ... vs Siva Match Industries, A Firm ... on 5 November, 1974
7. In my opinion, as far as the first point is concerned, it is really not material. Because of some argument advanced before the learned District Judge, he has referred to the definition of the expression 'assignment' as contained in Section 2 (1) (a) and the definition of the expression 'transmission' as contained in Section 2 (1) (w) of the Trade and Merchandise Marks Act, 1958. The case of the appellant was that the trade mark belonged to one New Jothi Match Industries, that with, the consent of New Jothi Match Industries the appellant used that trade mark and that that consent would constitute assignment as that consent was in writing. This question came to be considered in view of the provisions contained in Section 38 of the Act, referred to above. I must, even at this stage, refer to the fact that the entire controversy before the trial Court proceeded on the basis of the trade mark of the appellant being an unregistered one. Section 38 (i) of the Act states that an unregistered trade mark shall not be assignable or transmissible except along with the goodwill of the business concerned. Sub-section (2) of this section deals with certain exceptions. The learned District Judge, in paragraph 12 of his judgment, points out that it was conceded by the appellant before him that Sub-section (2) of Section 38 did not apply to his case. If so, there is no meaning in even relying upon Exhibit A-9 the consent said to have been given by New Jothi Match Industries for the appellant using their trade mark as an assignment, because Section 38 (i) clearly contemplates that an unregistered trade mark shall not be assignable or transmissible except along with the goodwill of the business concerned. It is not the case of the appellant that it had acquired the goodwill of New Jothi Match Industries. Therefore it is not necessary to consider this question further, because it will not be of any assistance to the appellant.