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1 - 10 of 17 (0.30 seconds)The Companies Act, 1956
Section 566 in The Companies Act, 1956 [Entire Act]
Section 575 in The Companies Act, 1956 [Entire Act]
Section 14 in The Indian Partnership Act, 1932 [Entire Act]
Section 18 in The Trade Marks Act, 1999 [Entire Act]
American Home Products Corporation vs Mac Laboratories Private Limited And ... on 30 September, 1985
The intention to use, it was held in American Home Products case does not necessarily mean that the proprietor must show the marketing of the goods under the trade mark. It is by now well established, in view of Section 2(2) (c) of the Act, the user cannot be limited merely to use on the goods or to sale of goods bearing the trade mark and that the use may be other than physical. We may now refer to certain averments in the counter statement of the registered proprietor 2nd respondent. It is stated that "at the time of establishment of the partnership firm the expression 'INDO-SHELL' was coined to be used as the firm's trade mark in relation to goods. Further it is averred that " the trade mark INDO SHELL and the logo have been used as trade marks continuously, extensively all over India and abroad without any interruption for over 30 years." In para 14 it is stated that "The 2nd respondent advertises and promotes its products bearing the trade mark INDO SHELL in India and abroad. The 2nd respondent has over the years spent a huge amount of money and effort in promoting their trade mark INDO SHELL in order to evolve a brand identity." Approximate yearly expenses on advertisements have been set out for the years 1995-96 to 2004-2005. With respect to the user by the applicant, it is stated that "while the applicant used the trade mark INDO SHELL with respect to its goods from 1990 till 2001 it had the oral consent of the partnership firm" these averments have not been denied in the reply statement filed by the rectification applicant and thus the said averments have gone unrebutted and unchallenged. In our view, therefore, the pleadings on record clearly establish that the registered proprietor had used the mark 'INDO-SHELL' in the trade mark sense. The onus placed upon the rectification applicant of proving the twin requirements of Section 47(1)(a) has not been discharged by him with regard to the plea of non user. Therefore, this ground based on which the applicant sought rectification of register also fails. Apart from the above, the contention raised with respect to the bonafide is misconceived in the sense that the expression "bonafide" used in Section 47(1) (a) of the Act is in the context of intention to use or bonafide use in relation to goods. The expression "bonafide" is, however, sought to be applied on behalf of the applicant in relation to the registration of the mark contrary to the MOU and the follow up agreement. That is not the intendment of Section 47(1) of Act. If, as contended on behalf, of the applicant that the registration of the mark is in breach of the agreement or the MOU, then the remedy of the applicant lies elsewhere and not by way of rectification. Section 47(1) cannot be invoked for the said purpose.