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TRADE AND MERCHANDISE MARKS ACT, 1958: ss. 46 and 56 – Application for rectification of registered trade mark – Trade mark sought to be rectified, being renewed from time to time – Company maintaining service centers in India – No intention on its part to abandon the right – Suit filed against applicant – No injunction against applicant granted – Applicant not manufacturing relevant items – HELD: There was delay on part of applicant in filing application – Applicant did not show as to how it would be injured if trade mark was allowed to stand – Suit to be decided expeditiously – Trade Mark and Merchandise Marks Rules, 1959 – r.94 – Delay/laches. s.23 – Registration of trade mark – Purpose of – Explained. ss.46 (1) (a) and (b), 46 (3) and 56 – Applicability of -Explained. ss. 46 and 56 – Application for rectification of registered trade mark – `Aggrieved person’ – Explained – In instant case applicant was an `aggrieved person’ and application was maintainable u/s 46 – Party. ss.109 – Appellate jurisdiction of High Court – Scope of – Explained. Words and Phrases: `Aggrieved person’ – Connotation of in the context of s.46 of Trade and Merchandise Marks Act, 1958. The appellant company, which had adopted the mark TOSHIBA, obtained, in the year 1971, trade mark registration No.273758 under the Trade and Merchandise Marks Rules, 1959, in respect of electrical appliances including washing machines, spin dryers etc. It served a notice upon the respondent, an Indian company, carrying on business of marketing various electrical appliances under the trademark `TOSIBA,’ calling upon it to desist from using the said trademark in respect of electrical goods including electric iron or any other goods whatsoever. The respondent in turn filed Application No. CAL No. 573 purported to be u/ss 46 and 56 of the Trade and Merchandise Marks Act, 1958 read with Rule 94 of the Rules, before the Registrar, Trade Marks seeking rectification of the registered trade mark no.273758 in respect of items covered in Class 7 of the Fourth Schedule to the Rules, alleging that it was using the mark `TOSIBA’ in respect of Domestic Electrical Appliances viz., auto irons, etc. covered in Class 9 of the Fourth Schedule to the Rules since the year 1975 and the mark in question offended the provisions of the Act; that the mark sought to be removed was not on the commencement of the proceedings distinctive of the goods of the registered proprietor. The respondent also averred that it was an aggrieved party as it was served with a notice by the appellants to discontinue the use of the word `TOSIBA’ which the respondent adopted in 1975. It filed two more applications bearing CAL No. 574 and CAL No. 575. The appellant also filed a suit in the High Court praying for a decree for permanent injunction restraining the respondent from using the mark `TOSIBA’ or any other deceptively similar mark in respect of electrical goods including electric irons, immersion rods, toasters, table lamps, ovens and stoves. The Deputy Registrar of Trade Marks partly allowed Application No. CAL No. 573 filed by the respondent and directed that the register of Trade Mark be rectified by deleting the goods `washing machines’ and `spin dryers’ from Trade Mark No. 273758 in Class 7. Rectification was also directed on the other applications CAL No. 574 and CAL No. 575. The appellant filed appeals before the High Court. The appeal arising out of CAL no. 573 was allowed partly by the Single Judge upholding the order of the Deputy Registrar so far as the application related to s. 46 (1) (a) of the Act. But the plea of the appellant was rejected as regards s. 46 (1) (b). The intra-court appeal filed by the appellant was dismissed by the Division Bench of the High Court. In the instant appeal, it was contended for the appellant that the respondent having not been dealing with either washing machine or spin dryer, was not a `person aggrieved’ within the meaning of s. 46 of the Act; and the name `TOSHIBA’ being well known and the word being an innovated one, although not directly, but the spirit of the provisions of s. 47 of the Act should have been considered by the Registrar in exercise of his jurisdiction under the Act. =Allowing the appeal, the Court HELD: 1.1 The intention to use a trade mark sought to be registered must be genuine and real. The person, who does not have any bona fide intention to use the trade mark, is not expected to get his product registered so as to prevent any other person from using the same. In that way trafficking in trade mark is sought to be restricted. [para 41] [696-C-D] 1.2 In the instant case, the appellant had obtained registration of trade mark in 1971 in respect of certain products falling in Classes 7 and 11 of the Fourth Schedule to the Trade and Merchandise Marks Rules, 1959 and mentioned in the registration certificates. The respondent was not in picture at that point of time. The appellant, after expiry of the validity of a period of seven years, has been getting its registration renewed from time to time and the same stands extended upto 2016. The appellant has not assigned the same in favour of any person or granted any licence in respect thereof. It specifically brought to the notice of the Registrar that it had been maintaining service centres in India in respect of washing machines. Though the appellant was not in a position to manufacture washing machines or spin dryers or market the same because of the ban imposed by the Central Government, but it had been rendering the services to those who had been importing the said machines. Although the appellant had not been using its registered trade mark effectively yet, there is a finding that it did not intend to abandon the said right. It intended to enforce its right under the Act as it had filed a suit against the respondent as far back as in the year 1990. [Paras 26, 27, 28, 53 and 54] [691-B,C,E, 701-A-C, 703-A-C] 2.1 In an application filed in the prescribed manner by a person aggrieved, the grounds available to the Registrar for exercise of discretionary jurisdiction are as stated in clauses (a) and (b) of sub-section (1) of Section 46 of the Trade and Merchandise Marks Act, 1958. Clauses (a) and (b) are disjunctive and not cumulative. Recourse may be taken to either of them or both of them. [para 31] [962-E & F] 2.2 A combined application even under Sections 46 and 56 of the Act is permissible in law. No doubt, a statute is required to be read as a whole. However, the purpose for which clauses (a) and (b) of sub-section (1) of Section 46, on the one hand, and sub-section (3) thereof vis-

Toshiba Corporation's headquarters (center) in...

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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDCTION

 CIVIL APPEAL N1O. 3639 OF 2008

 (Arising out of SLP (C) No.5542 of 2006)

Kabushiki Kaisha Toshiba ... Appellant

 Versus

TOSIBA Appliances Co. & Ors. ... Respondents

 JUDGMENT

S.B. Sinha, J.

1. Leave granted.

INTRODUCTION

2. Jurisdiction of a Registrar of Trade Mark to remove the registered

mark from the register maintained by it on the ground of non-use as
 2

contained in Section 46 of the Trade and Merchandise Marks Act, 1958 is

the question involved in this appeal which arises out of a judgment and

order dated 8.12.2005 passed by a Division Bench of the Calcutta High

Court dismissing an appeal being CAL No.573 arising out of a judgment

and order dated 28.9.1993 passed by a learned Single Judge of the High

Court affirming the final order dated 24.2.1992 passed by the Deputy

Registrar, Trade Marks.

BACKGROUND FACTS

3. The factual matrix obtaining herein shorn of all unnecessary details is

as under :

 Appellant claims itself to be the largest manufacturer of Heavy

Electrical apparatus in Japan. The establishment started in the name of

Shibaura Engineering Works in the year 1857. In 1890, Hakunetshu-Sha

and Company Ltd. established the first plant for electric incandescent lamps

in Japan. It later on diversified its product into consumer products.

Hakunetshu-Sha and Co. Ltd. was renamed as Tokyo Electric Company in

the year 1899. Shibaura Engineering Works Company Ltd. merged with

Tokyo Electric Company to form Tokyo Shibaura Electric Company in the

year 1939. However, the name of the company was changed to Kabushiki
 3

Kaisha Toshiba (for short, TOSHIBA). Appellant adopted the mark

TOSHIBA in which `TO' was taken from the Tokyo and `SHIBA' was

taken from the word Shibaura.

4. An application was filed for registration of eight items of electrical

apparatuses which fall in Class 07 of the Rules framed under the 1958 Act

being :

 "Current generators, induction motors (electric),
 electric washing machines, compressors
 (machinery) and electric tool set consisting of
 electric drills (machines), spin dryers and can
 openers being electrically operated tools, all being
 goods include in class 7."

5. Registration was granted in respect of the said items being Trade

Mark No.273758. Other registeration numbers were given in favour of the

said group in respect of some other goods falling under Class IX and XI.

6. Respondent herein is an Indian company. It claims to have been

carrying on business of various electrical appliances and marketing auto

irons, toasters, washing machine, extension cords, table lamps, etc. under

the trademark TOSIBA since 1975.
 4

7. The following chart will show the range of goods registered in favour

of TOSHIBA and which had been sought to be rectified by the respondent :

 "Mark Registration Date Clas Goods
 Number s
Toshiba (Logo) 160442 5.9.1953 9 Scientific, nautical,
 surveying & electrical
 apparatus, etc.

Tosiba (Logo) 160443 5.9.1953 11 Installations for cooking,
 refrigerating, drying,
 ventilating, water supply
 and sanitary purposes

TOSHIBA 273758 26.7.1971 7 Current generators,
 induction motors
 (electrical), electric
 washing machines, etc.

TOSHIBA 273759 26.7.1971 9 Various electronics &
 electrical goods falling in
 Cl.9.

TOSHIBA 273760 26.7.1971 11 Various goods including
 lamps, ovens, water
 heaters, fans, toasters,
 cookers, etc."

8. It is stated that the appellant had since acquired about 35 trade marks

registrations in India. The period of seven years expired in 1978. On the
 5

expiry thereof, it became conclusive of its validity in terms of Section 32 of

the Act. The said registration has been extended from time to time. It has

been extended upto 2016.

9. In the year 1984, the name of the Tokyo Shibaura Electric Company

was changed to Kabushiki Kaisha Toshiba (Toshiba Corporation). The said

change was also duly incorporated in the trademarks register.

 On the premise that the respondent which had although not been

producing or marketing washing machines or spin dryers, but has been

using the trade name, which was deceptively similar to that of the appellant,

a lawyer's notice was served upon it, stating:

 "The trade mark TOSHIBA is such a well known
 trade mark in India and abroad that its use or the
 use of a phonetic equivalent mark in respect of
 electronic and electrical goods would cause
 immense confusion and deception amongst the
 purchasing public and the trade.
 Our clients were surprised when they recently
 learnt of the adoption and use of the mark
 TOSIBA both as your trade mark and an essential
 feature of your trading style in respect of a range
 of electrical goods including electric irons.
 The adoption of the mark TOSIBA is clearly mala
 fide and amounts to infringement of our clients'
 various registered trade marks including numbers
 160443 and 273760.
 6

 The word TOSIBA is phonetically and visually
 similar to our clients' trade mark TOSHIBA and
 by the use of the said mark in respect of electrical
 goods, you are likely to cause immense confusion
 and deception amongst the purchasing public and
 the trade."

10. Respondent was called upon to desist from using the trademark

TOSIBA in respect of electrical goods including electric irons or any other

goods whatsoever. No reply thereto was given.

PROCEEDINGS BEFORE THE REGISTRAR

11. It, however, filed an application purported to be under Section 46 and

56 of the Act read with Rule 94 of the Rules before the Registrar, Trade

Marks which was marked as Application No. CAL No.573, praying for

rectification of the said registered trade mark No.273758 in Class 7

alleging:

 "7. That the petitioners are using the mark
 TOSIBA in respect of Domestic Electrical
 Appliances viz. Auto Irons, Non-Auto Irons,
 Ovens, Toasters, Immersion Rods, Extension
 Cords, Table Lamps and Airy Fans etc. in class 9
 since the year 1975. The mark in question offends
 against the provisions of section of the Trade and
 Merchandise Marks Act on the date of
 7

 commencement of the proceedings between the
 parties.
 8. That the mark sought to be removed was not
 on the commencement of the proceedings,
 distinctive of the goods of the Registered
 proprietor.
 9. That the mark also offends Section 11(e) of
 the Trade and Merchandise Marks Act, being dis-
 entitled to protection in a Court of Law.
 10. That the applicants are aggrieved parties as
 they have been served with a notice dated 24th
 April 1989 on behalf of the respondents to
 discontinue the use of the word TOSIBA which
 the petitioners adopted in the year 1975. They
 have been threatened with action under various
 provisions of Trade and Merchandise Marks Act
 and also under Article 36A of the Monopoly and
 Restrictive Trade Practices Act, 1969 alleging
 unfair trade practices. The respondents have no
 business in India.
 The threats made were unjustified. That the
 petitioners even approached the respondents
 attorneys for not to interfere with their long-
 standing business, but without any result, hence
 the petitioner are the aggrieved party within the
 meaning of Section 56 of Trade and Merchandise
 Marks Act competent to file the present petition."

 Two other applications were also filed for rectification of two other

trade marks wherewith we are not concerned.

12. Appellant filed a suit in the Delhi High Court against the respondent

praying for a decree for permanent injunction for using the mark TOSIBA
 8

or any other deceptively similar mark in respect of electrical goods

including electric irons, immersion rods, toasters, table lamps, ovens and

stoves. The said suit is still pending.

13. In its affidavit before the Registrar of Trade Marks, the appellant

contended:

 "14. Annexed to my affidavit and marked
 Annexure H are extracts from the Import and
 Export Policy of the Government of India
 (Ministry of Commerce) for the years:
i) April 1985 to March 1988;
ii) April 1988 to March 1991;
iii) April 1990 to March 1992.
 Thus, the import and export policies for the period
 April 1985 to March 1991 show that electric
 motors, compressors and generators fall under
 Appendix 3 Part A of the policy which is a list of
 limited permissible items for which the import is
 not free but only against a licence.
 Washing machines being consumer goods fall
 under Appendix 2 part B which is the list of
 restricted items.
 It is, therefore, evident that the import of goods
 covered by registration No.273758 is not free but
 restricted."
 9

14. By reason of an order dated 12.5.1992, the Deputy Registrar of Trade

Marks partially allowed the application for rectification filed by the

respondent being Application No.CAL.573 and directed that the register of

Trade Mark be rectified by deleting the goods `washing machines' and `spin

dryers' from Trade Mark No.273758 in Class 7. Rectification was also

directed on the other applications filed by the respondent being CAL-574

and 575.

APPEAL BEFORE THE HIGH COURT

15. An appeal was preferred thereagainst before the Calcutta High Court

in terms of Section 109 of the Act. Appeals were also preferred against

orders in respect of Class 9 and Class 11 registrations. The said appeal was

allowed in part by the learned Single Judge of the High Court of Calcutta by

an order dated 28.9.1993, upholding the order of the Deputy Registrar so far

as the application related to Section 46(1)(a) of the Act but rejected the plea

as regards Section 46(1)(b) thereof, holding:

 "The first point to my mind which should be
 disposed of is the point as to the locus standi of
 Mr. Gupta's client. It is the admitted position that
 until now the respondents have manufactured and
 sold articles only in class 11, and those are
 household electrical articles like electric iron, fan
 10

and toaster. They sell these under the mark
`TOSIBA'.
It is not that the respondent has manufactured or
sold washing machines or spin dryers at all or
even that they have any finalized plans for so
commencing the manufacture or sale of any of
these items.
In a paper book running to no fewer than 725
pages, not to mention a comparatively slim
supplementary paper book, the only place where a
connection between the respondent and washing
machines or spin dryers is mentioned is at page
542, where it is recorded as stated before the
Deputy Registrar in his order that the respondent
also deals in some goods falling in class 7 such as
washing machines and spin dryers and some other
allied goods. If that statement was made before
the deputy registrar, then that was a misstatement.
 XXX XXX XXX
The mark of the appellant `TOSHIBA' and the
status of the said word as a registrable mark is
beyond dispute. It is almost admittedly an
invented word, a hybrid between the name of the
city Tokyo and the name of the company of origin,
Shibaura.
It is also in my opinion beyond dispute that the
mark `TOSIBA' is so similar to the mark
`TOSHIBA' as to give the appellant an
indisputable right to call upon the respondent to
cease to use that mark in relation to goods for
which the appellant is registered, in case such
registration can be maintained by the appellant on
the register."
 (emphasis supplied)
 11

16. However, with regard to the contention of the appellant that the

respondent was not a person aggrieved or that the Registrar should not have

used its discretionary jurisdiction, the learned judge held:

 "If a person obtains a registration at a time when
 the mark, according to his own estimate, is
 economically unusable, then he cannot be said to
 have had a bona fide intention at the time of
 registration that the mark should be used in
 relation to the goods. If, however, he waits and
 watches the market of the country in which he
 wishes to have registration, and then, as soon as
 the restriction is lifted, he obtains registration
 without delay, he can indeed then be said to have a
 bona fide intention that the goods should be used
 in the market in question.
 It is possible that if he waits for so long as
 that, he will no longer be able to get his
 registration at all, for another trader within the
 country might well have used up his name by then
 for the same goods. This is an unpreventable
 hazard. The trade mark law is a national code and
 not an international treaty, speaking broadly. If a
 country blocks international trade within itself,
 international names only cannot be registered and
 preserved in the blocked market. This would
 mean allowing international names to hold the
 market totally without goods, or give international
 marks a copyright value, and both these are
 impermissible and against the first principles of
 trade mark law.
 It cannot therefore in my opinion be said
 that in 1971 the appllenats had a bona fide
 intention that the goods, namely, washing
 machines and spin dryers, should be traded in
 India under their trade mark `TOSIBA'. Without
 12

 the economic restrictions being lifted from the
 Indian market, trading, according to themselves,
 was and continued to be an unprofitable
 proposition. Such lack of intention can be
 gathered from the admitted stand taken by the
 appellant before me, and in the registry, where it
 was the respondent. The onus upon the
 respondent in appeal to show such lack of
 intention is thus fully discharged."

 The contention of the appellant was rejected, opining:

 "Mr. Gupta has conceded even from the time of
 the interlocutory application was heard in aid of
 this appeal that the order of the Deputy Registrar
 is to be so read as to restrict the rectification to the
 two items of washing machines and spin dryers
 only and it should not be read as the rectification
 application succeeding for the entire class.
 With recording of such concession, I dismiss the
 appeal but I do it on grounds of my own which I
 have mentioned above and not necessarily on the
 grounds given by the Deputy Registrar. The
 respondents would entitle to the costs of this
 appeal."

 It was furthermore held that the special circumstances mentioned

under sub-section (3) of Section 46 were not applicable.

17. An intra court appeal was preferred thereagainst. Cross-objections

were also filed by the respondent on the pleas that the mark should also be
 13

rectified under Section 46(1)(b), i.e., no bona fide use for a continuous

period of five years and one month.

IMPUGNED JUDGMENT

18. By reason of the impugned judgment dated 8.12.2005, the said appeal

was dismissed holding that the respondent was a person aggrieved, stating:

 "The purpose of introducing the expression
 `person aggrieved' in the statute is obviously to
 prevent action from persons who are interfering
 only from merely sentimental notions or personal
 vengeance and act as mere common informers.
 But in case where one trader, by means of having a
 trade mark wrongly registered in his name,
 narrows the area of business open to his rivals, in
 that case the rival is a person aggrieved. It may be
 that the rival is not immediately carrying on the
 trade. But if there is a reasonable possibility for
 the rival to carry on that trade in future in view of
 his presently carrying on a trade in the same class
 of goods then the rival trader is a person
 aggrieved. In other words, if a person or a
 corporation is in the trade of the same class of
 goods along with the company which has got a
 mark registered in its name and is thus the
 hampered in the possible expansion of his trade in
 that case the person or the corporation is a person
 aggrieved.'

19. The question as to whether requirements of Section 46(1)(a) of the

Act were fulfilled or not was answered thus :
 14

 "Here the date of registration was 26.7.1971 and
 the date of rectification application was 30.5.1989.
 In between there has been no use of the concerned
 goods by the registered proprietor except one
 advertisement which has already not been
 accepted by this Court as an instance of use.
 Therefore, in the facts of this case, the order of the
 Deputy Registrar of rectification by deletion of
 two items namely electric washing machine and
 spin dryers from the registered Trade Mark
 No.273758 in Class 7 goods is quite justified. It
 appears that the registration in favour of the
 appellant in Class 7 goods was in respect of
 various other goods and out of those goods only
 two have been deleted.
 This is quite permissible and is within the object
 and scope of Section 46 of the said Act."

20. The Division Bench of the High Court did not go into the contention

of the respondent that the appellant was not entitled to any relief in terms of

Section 46(1)(b), stating :

 "The learned Counsel for the respondents on the
 basis of the cross appeal has urged that the
 appellants are not entitled to the relief under
 Section 46(1)(b). But in view of the facts of this
 case which make the case against the appellants
 under Section 46(1)(a) so very clear that this Court
 need not decide the said cross appeal in any detail.
 This Court is of the view that the decision of the
 learned Judge under Section 46(1)(a) was right
 and the rectification which has been ordered by
 the Registrar cannot be interfered with."
 15

CONTENTIONS

21. Mr. F.S. Nariman, learned Senior Counsel appearing on behalf of the

appellant, would urge:

1) Respondent having not been dealing with either washing machine or

 spin dryer, was not a `person aggrieved' within the meaning of

 Section 46 of the Act.

2) The statutory scheme must be gathered from reading the provisions of

 Section 46, 47 and 56 conjointly and so read it would be evident that

 as the appellant having been found to have abandoned its right to

 continue to be registered, it should have been held that the

 requirements under Section 46(1)(a) have also not been fulfilled.

3) The name `TOSHIBA' being well known and the word being an

 innovated one, although not directly but the spirit of the provisions of

 Section 47 should have been considered by the Registrar in exercise

 of its discretionary jurisdiction under the Act, particularly when no

 public interest was found to be involved.

22. Mr. Ajay Gupta, learned counsel appearing on behalf of the

respondent, on the other hand, would urge:
 16

(1) The application for rectification being a composite one being under

 both Sections 46 and 56, the respondent was a person aggrieved, as

 envisaged under sub-section (2) of Section 56 of the Act.

(2) In any event, the appellant having served the respondent with a notice

 of action, it was a `person aggrieved'.

(3) The matter having remained pending for 19 years during which

 period, the appellant having not been able to obtain any order of stay

 from any court and/or having not entered into any arrangement for

 using its registered mark in India either by itself or through an Indian

 company, the impugned judgment should not be interfered with.

(4) The distinction between clauses (a) and (b) of sub-section (1) of

 Section 46 being clear and explicit, it is idle to contend that only

 because the respondent's claim under the latter clause has been

 negatived, its claim under clause (a) would also necessary fail.

(5) The provisions of Section 45 of the Act should be kept in mind while

 interpreting Sections 46 and 56 of the Act.

Statutory Provsions
 17

23. Chapter VI of the 1958 Act deals with use of trade mark and

registered users. Section 45 provides for proposed use of trade mark by

company to be formed. Section 46 is in two parts. It is subject to

provisions of Section 47. In terms of the said provision, the registered mark

may be taken off the register in respect of any of the goods for which it was

registered on application made in the prescribed manner by any person

aggrieved on the grounds envisaged either clause (a) or (b). Section 47,

however, provided for a defense registration of well known trade marks;

sub-section (1) whereof reads as under :

 "Section 47 - Removal from register and
 imposition of limitations on ground of non-use.
 (1) A registered trade mark may be taken off the
 register in respect of the goods or services in
 respect of which it is registered on application
 made in the prescribed manner to the Registrar or
 the Appellate Board by any person aggrieved on
 the ground either--
 (a) that the trade mark was registered without any
 bona fide intention on the part of the
 applicant for registration that it should be
 used in relation to those goods or services by
 him or, in a case to which the provisions of
 section 46 apply, by the company concerned
 or the registered user, as the case may be, and
 that there has, in fact, been no bona fide use
 of the trade mark in relation to those goods or
 services by any proprietor thereof for the time
 being up to a date three months before the
 date of the application; or
 18

 (b) that up to a date three months before the date
 of the application, a continuous period of five
 years from the date on which the trade mark
 is actually entered in the register or longer
 had elapsed during which the trade mark was
 registered and during which there was no
 bona fide use thereof in relation to those
 goods or services by any proprietor thereof
 for the time being:
 Provided that except where the applicant has been
 permitted under section 12 to register an identical
 or nearly resembling trade mark in respect of the
 goods or services in question, or where the
 tribunal is of opinion that he might properly be
 permitted so to register such a trade mark, the
 tribunal may refuse an application under clause (a)
 or clause (b) in relation to any goods or services, if
 it is shown that there has been, before the relevant
 date or during the relevant period, as the case may
 be, bona fide use of the trade mark by any
 proprietor thereof for the time being in relation
 to--
 (i) goods or services of the same description; or
 (ii) goods or services associated with those goods
 or services of that description being goods or
 services, as the case may be, in respect of
 which the trade mark is registered."

24. Chapter VII of the Act provides for rectification and correction of the

register. Section 57 confers a power upon the Registrar to cancel or vary

the registration and to rectify the registrar, inter alia, on the ground of any

contravention or failure to observe a condition entered on the register in
 19

relation thereto. Sub-section (2) of Section 57 provides that any person

aggrieved by the absence or omission from the register of any entry, or by

any entry made in the register without sufficient cause or by any entry

wrongly remained on the register or by any remedy or defect in any entry in

the register may apply in the prescribed manner to the Registrar and the

Tribunal may make such order for canceling or varying the entry as it thinks

fit.

 The Central Government, in exercise of its rule making power, made

rules known as Trade Marks Rules, 1959. The Fourth Schedule appended

to the Rules classified different products; Class 7 whereof reads as under:

 "THE FOURTH SCHEDULE

 Classification of Goods - Names of the Classes

 (Parts of an article or apparatus are, in general,
 classified with the actual article apparatus, except
 where such part constitutes articles included in
 other classes).

 1 to 6 ...

 7. Machines and machine tools; motors
 (except for vehicles); machine couplings and
 belting (except for vehicles); large size
 agricultural implements; incubators."

Statutory Interpretation/Application
 20

25. The Act is a complete Code in itself. Section 6 of the Act provides

for the maintenance of a record called register of trademarks.

26. Indisputably, application for registration of the trademark filed by the

appellant herein had been allowed way back in 1971 in respect of the items

mentioned in the registration certificates.

27. Respondent was not in picture at that point of time. It, however,

obtained registration in respect of certain products which fall in Classes 7

and 11.

28. Chapter IV of the Act provides for the effect of registration. When a

trade mark is infringed, the consequences laid down under Section 29 would

ensue. Section 32 provides for the registration to be conclusive as regards

the validity after seven years. Indisputably, the appellant, after expiry of the

validity of a period of seven years, had been getting its registration renewed

from time to time. Chapter V provides for assignment and transmission. It

is not necessary to notice any of the provision contained in the said Chapter

as admittedly, the appellant has not assigned the same in favour of any

person or granted any licence in respect thereof.
 21

 Chapter VI provides for use of trade mark and registered users.

Section 45 provides for proposed use of trade mark by company to be

formed. Chapter VI, inter alia, lays down the guidelines as regards the

mode and manner in which the trade mark can be used. Section 45 provides

for proposed use of trade mark by company to be formed which is indicative

of the fact that the plan to obtain registration of a trade mark may begin

even before the company is formed. Section 47 provides for defensive

registration of well known trade marks; such defensive registration was,

however, not resorted to by the appellant herein.

29. As noticed hereinbefore, appellant contended that the said provision

should also be taken into consideration for proper constructions of Section

46 of the Act to which we shall advert to a little later. Section 48 provides

for the registered users. Whenever the user's right to use a trademarked is

assigned or a licence is given to any third party, the user by the assignee or

the licensee to the benefit of the register to the person who has obtained the

registration.

30. Apart from Section 46, the power of rectification and correction of

the register is also contained in Section 56 of the Act.

Construction of the Statute
 22

31. In the aforementioned backdrop of the statutory provisions, we are

called upon to interpret clauses (a) and (b) of sub-section (1) of Section 46

of the Act.

 It is beyond any doubt or dispute that sub-section (1) of Section 46

confers a discretionary jurisdiction on the Registrar. The jurisdiction may

be exercised if any application is filed by a person aggrieved. The said

application has to be filed in the manner prescribed therefor. Whence it is

found that the application is filed by a person aggrieved in the prescribed

manner, the grounds which would be available to the Registrar for exercise

of its discretionary jurisdiction are stated in clauses (a) and (b) of sub-

section (1) of Section 46. We may, at the outset, notice that clauses (a) and

(b) are disjunctive and not cumulative. Recourse may be taken to either of

them or both of them. A combined application even under Section 46 and

56 of the Act is permissible in law.

32. Whereas clause (a) refers to bona fide use of the trade mark; clause

(b) stipulates the period upto a date of one month before the date of

application, a continuous period of five years or longer elapsed during

which the trade mark was registered and during which there was no bona

fide use thereof in relation to those goods by any proprietor thereof for the

time being. Sub-section (3) postulates an exclusion clause as regards
 23

application of clause (b) of sub-section (1) of Section 46 if any non-use of a

trade mark which is shown to have been due to special circumstances in the

trade or not to any intention to abandon or not to use the trade mark in

relation to the goods to which the application relates.

33. No doubt, a statute is required to be read as a whole, Chapter by

Chapter, Section by Section and clause by clause. However, the purpose

for which clauses (a) and (b) of sub-section (1) of Section 46 on the one

hand and sub-section (3) thereof, vis-`-vis Section 56 of the Act on the

other have been enacted require consideration. The appeared to have been

enacted for different purposes.

ANALYSIS

34. We may now consider the three-fold submission of Mr. Nariman that:

i) the Registrar has not exercised its jurisdiction under Section 56 of the

 Act;

ii) the learned Single Judge while exercising its appellate jurisdiction

 has found that no case has been made out for invoking clause (b) of

 sub-section (1) of Section 46; and
 24

iii) The trade mark consists of an invented word and is very well known

 in the international market.

 The basis of the said submission, thus, appear to be two-fold:

(1) As there is no evidence that the appellant had any intention to

 abandon the use of the said trademark, as a logical corollary thereof,

 the High Court ought to have held that the appellant had the intention

 of bona fide use of the trade mark not only at a point of time when an

 application for registration was filed but also continuously thereafter;

(2) The provisions of clauses (a) and (b), if read in the aforementioned

 context, sub-section (3) of Section 46 would also come into play

 particularly when the words `non-use' therein and clause (a) of sub-

 section (1) are identical, namely `not to have any intention to abandon

 or not to use the trade mark in relation to the goods to which the

 application relates' and save and except in clause (a), the word `bona

 fide' has been added.

35. We do not find any force in the aforementioned submission. Clauses

(a) and (b) operate in different fields. Sub-section (3) covers a case falling

within clause (b) and not the clause (a) thereof. Had the intention of the

Parliament been that sub-section (3) covers cases falling both under clause
 25

(b) and clause (a), having regard to the similarity of the expressions used,

there was no reason as to why it could not be stated so explicitly.

36. If the submission of Mr. Nariman is to be accepted, the result thereof

would be that for all intent and purport, no distinction would exist in the

situations covered by clause (b) and clause (a) except that whereas in the

former no period is mentioned, in the latter a specific period is provided.

37. There may be a case where owing to certain special circumstances, a

continuous use is not possible. The trade mark for which registration is

obtained is used intermittently. Such non-user for a temporary period may

be due to any exigency including a bar under a statute, or a policy decision

of the Government or any action taken against the registrant.

38. Moreover, in cases of intermittent use, clause (b) shall not apply.

[See M/s. Plaza Chemical Industries v. Kohinoor Chemicals Co. Ltd. [AIR

1975 Bombay 191]; Express Bottlers Services Pvt. Ltd. v. Pepsico Inc &

Ors. [1988 (1) CLJ 337]; Bali Trade Mark (Rectification Ch.D [1966 (16)

RPC 387]; Bali Trade Mark (Rectification C.A.) [(1968 (14) RPC 426]; and

"BULOVA" Trade Mark (Rectification Ch.D) [1967 (9) RPC 229].

39. Clause (a) of sub-section (1) of Section 46 takes within its sweep a

situation where registration has been obtained without any bona fide
 26

intention on the part of the registrant that it should be used in relation to

those goods by him and that there has, in fact, been no bona fide use.

Clause (a), therefore, provides for more than one contingency. Both the

pre-conditions laid down therein are required to be fulfilled and not the

contingency which is contemplated by clause (1).

 Furthermore, it is not a case where the appellant had taken recourse to

Section 47 of the Act.

40. In American Home Products Corporation v. Mac Laboratories Pvt.

Ltd. & Anr. [(1986 (1) SCC 465], this Court categorically noticed the

aforementioned distinction, stating:

 "32. Clause (b) of Section 46(1) applies where for
 a continuous period of five years or longer from
 the date of the registration of the trade mark, there
 has been no bona fide use thereof in relation to
 those goods in respect of which it is registered by
 any proprietor thereof for the time being. An
 exception to Clause (b) is created by Section 46
 (3). Under Section 46(3), the non-use of a trade
 mark, which is shown to have been due to special
 circumstances in the trade and not to any intention
 to abandon or not to use the trade mark in relation
 to the goods to which the application under
 Section 46(1) relates, will not amount to non-use
 for the purpose of Clause (b).
 33. The distinction between Clause (a) and Clause
 (b) is that if the period specified in Clause (b) has
 elapsed and during that period there has been no
 27

 bona fide use of. the trade mark, the fact that the
 registered proprietor had a bona fide intention to
 use the trade mark, at the date of the application
 for registration becomes immaterial and the trade
 mark is liable to be removed from the Register
 unless his case falls under Section 46(3), while
 under Clause (a) where there had been a bona fide
 intention to use the trade mark in respect of which
 registration was sought, merely because the trade
 mark had not been used for a period shorter than
 five years from the date of its registration will not
 entitle any person to have that trade mark taken off
 the Register."

41. The intention to use a trade mark sought to be registered must be

genuine and real. When a trade mark is registered, it confers a valuable

right. It seeks to prevent trafficking in trade marks. It seeks to distinguish

the goods made by one person from those made by another. The person,

therefore, who does not have any bona fide intention to use the trade mark,

is not expected to get his product registered so as to prevent any other

person from using the same. In that way trafficking in trade mark is sought

to be restricted.

PERSON AGGRIEVED

42. The concept of the term `person aggrieved' is different in the context

of Section 46 and 56. Section 46 speaks of a private interest while Section

56 speaks of a public interest. Respondent filed a composite application.
 28

Registrar did not think it fit to consider the case from the point of view of

public interest and confined the case to Section 56 of the Act, as would

appear from the fact that while sustaining the respondent's objection under

Section 46(1) and (b) on the ground that the same had not been used by the

appellant for the last twenty years, it was observed:

 "Having held that Section 46(1)(a) is a bar to the
 continuation of the impugned mark on the Register
 as above, I hold that the entry in respect of those
 goods for which the Registered Proprietors could
 not prove their user of the Registered Trade Mark
 273758 was wrongly made in the Register and is
 wrongly remaining on the Register under Section
 56(2) of the Act."

43. Reference to Section 56(2) of the Act at that place appears to be a

typographical mistake. It is palpably wrong. No deliberation was made on

the said question. No fact or contention has been taken note of. There are

no discussions; no findings.

44. The learned Single Judge found that the respondent No.1 had never

manufactured or sold washing machine and spin dryers at all. They did not

have even any plan for commencing the manufacture or sale thereof. It, in

that backdrop, was observed:
 29

 "If that statement was made before the Deputy
 Registrar, then that was a misstatement."

45. Respondent, however was found to be a person aggrieved upon

taking into consideration a large number of decisions. It was held:

 "The respondent is anything but a common
 informer or an officious person. It deals in articles
 of class 11 and it uses the mark TOSIBA. If it
 were to go into the trade of washing machines or
 spin dryers, and if the mark TOSHIBA were to
 remain on the register, with the appellant as its
 proprietor, the respondent could not in that event,
 use its mark for washing machines and spin dryer
 too. This is enough, I think, to com to the
 conclusion without any hesitation that the
 respondent had a sufficient and impeachable locus
 standi to maintain the rectification application in
 the registry."

46. The learned Single Judge as also the Division Bench referred to a

large number of decisions to hold that the respondent was the person

aggrieved within the meaning of Sections 46 and 56 of the Act. It is beyond

any doubt that the question has authentically been answered by a Division

Bench of this Court in Hardie Trading Ltd. & Anr. v. Addisons Paint &

Chemicals Ltd. [(2003) 11 SCC 92], holding

 "30. The phrase "person aggrieved" is a common
 enough statutory precondition for a valid
 complaint or appeal. The phrase has been
 30

variously construed depending on the context in
which it occurs. Three sections viz. Sections 46,
56 and 69 of the Act contain the phrase. Section
46 deals with the removal of a registered
trademark from the register on the ground of non-
use. This section presupposes that the registration
which was validly made is liable to be taken off by
subsequent non-user. Section 56 on the other hand
deals with situations where the initial registration
should not have been or was incorrectly made. The
situations covered by this section include: - (a) the
contravention or failure to observe a condition for
registration; (b) the absence of an entry; (c) an
entry made without sufficient cause; (d) a wrong
entry; and (e) any error or defect in the entry. Such
type of actions are commenced for the "purity of
the register" which it is in public interest to
maintain. Applications under Sections 46 and 56
may be made to the Registrar who is competent to
grant the relief. "Person's aggrieved" may also
apply for cancellation or varying an entry in the
register relating to a certification trademark to the
Central Government in certain circumstances.
Since we are not concerned with a certification
trademark, the process for registration of which is
entirely different, we may exclude the
interpretation of the phrase "person aggrieved"
occurring in Section 69 from consideration for the
purposes of this judgment.
31. In our opinion the phrase "person aggrieved"
for the purposes of removal on the ground of non-
use under section 46 has a different connotation
from the phrase used in section 56 for cancelling
or expunging or varying an entry wrongly made or
remaining in the Register.
32. In the latter case the locus standi would be
ascertained liberally, since it would not only be
against the interest of other persons carrying on
 31

 the same trade but also in the interest of the public
 to have such wrongful entry removed."

Section 46(1)(b) issue

47. Mr. Gupta would contend that the respondent is entitled to raise the

question of applicability of clause (b) of sub-section (1) of Section 46

although no cross-objection has been filed, on the principles analogous to

Order XLI Rule 33 of the Code of Civil Procedure. Strong reliance in this

behalf has been placed on Ravinder Kumar Sharma v. State of Assam &

Ors. [(1999) (7) SCC 435]. We do not agree.

 Mr. Gupta himself submitted that clauses (a) and (b) of sub-section

(1) of Section 46 are in two different water tight compartments. It confers,

therefore, two remedies. The ingredients to establish that a case has been

made out for removal of the registration of the appellant from the register,

thus, are on separate grounds. If the High Court has refused to consider one

of the grounds, its right was affected to urge the applicability of clause (b)

being separate and distinct from the grounds on which contention can be

raised for applying the ingredients of clause (a) being wholly distinct and

different, the principles of Order XLI Rule 33 of the Code of Civil

Procedure, in our opinion, would not be applicable. The causes of action
 32

for invoking clauses (a) and (b) are different and, thus, when a composite

application is filed, only different causes of action are joined together. If

one cause of action fails, the remedy by way of appeal thereagainst must be

availed.

48. Mr. Gupta submits that therein the application was filed under

Section 46 and not under Section 56 whereas grounds have been raised both

under Sections 46 and 56 of the Act.

49. A situation of this nature has not been considered in any of the

precedents. The original application filed by the respondent was

maintainable on three counts:

1. Application of Section 46, both under clauses (a) and (b);

2. Application of Section 56; and

3. The common law principle that he had been served with a legal notice

 by the appellant desisting from using the word TOSIBA.

50. It is difficult to hold that only because respondent had not been able

to prove one of the grounds, namely, applicability of Section 56 of the Act,

it loses its locus also. It would continue to be a person aggrieved even

within the purview of Section 46 of the Act as it was slapped with a notice
 33

of action and it had a cause of action. It had a remedy. It invoked the

jurisdiction of the Registrar on a large number of grounds. One of it was

accepted, others were not.

51. The petition, therefore, which was maintainable, did not cease to be

so particularly when the respondent not only faced with a legal action but,

in fact, later on a suit has also been filed by the appellant against it. We

would leave the question at that.

Exercise of Discretional jurisdiction

52. This brings us to the question as to whether it was a fit case where the

Registrar and consequently the High Court should have exercised its

discretionary jurisdiction.

 Sub-section (2) of Section 109 provides for an appeal from any order

or decision of the Registrar under the Act or the Rules made thereunder. An

appeal is to be heard by a learned Single Judge. A further appeal is

provided before a Division Bench in terms of sub-section (5) of Section 109

of the Act. Appellate jurisdiction of the High Court is not restricted or

limited. Sub-section (6) of Section 109 stipulates that the High Court shall

have the power to make any order which the Registrar could make under the
 34

Act. In other words, if the Registrar exercises a discretionary jurisdiction,

the High Court while exercising its appellate jurisdiction would continue to

do so. The High Court having a plenary jurisdiction, thus, was not only

entitled to take into consideration the materials placed on record as also the

finding of the Registrar, but it could also arrive at its own finding on the

basis of the materials on record.

53. For the said purpose, the basic admitted fact could have been taken

into consideration. It may be true that the appellant whether from the date

of registration, or from the date of order of rectification or even a post

rectification period did not use the registered trade mark. It did not enter

into any collaboration agreement with an Indian company. It did not grant

any licence to any other person to use the trade mark.

 We may, however, notice that at least in the year 1985 it had issued

an advertisement before any controversy arose. It renewed the registration

every seven years. Its registration stands extended upto 2016 A.D. It

specifically brought to the notice of the Registrar that it had been

maintaining service centres in India in respect of washing machines, stating:

 "Thus, to summarize:
 35

(a) TOSHIBA has several joint venture agreements in India,
 for various products including VCRS, colour picture
 tubes, batteries. etc.
(b) TOSHIBA has technical collaboration agreements for
 manufacture of various products in India including body
 scanners, ultra sound equipments, PIP televisions etc.
(c) TOSHIBA has several service centres in India in the
 cities of New Delhi, Bombay, Madras, Calcutta, Baroda,
 Bhopal, Cochin, Kerala and Bangalore for repairing
 various electronic and electrical products including
 televisions, VCRS, ovens, music systems, washing
 machines etc.
(d) TOSHIBA has sold several goods in India under the
 trade mark TOSHIBA including electric motors and
 accessories, generators, fax machine, whole body C.T.
 scanners & ultrasound equipment, circuit breakers,
 transistors, integrated circuits, colour TV sets,
 engineering, samples and spare parts for televisions,
 VCRs, cassette recorders, microwave equipment and
 various other goods to actual users and authorized
 service centres."

 The learned Single Judge also noticed the said contention in the

following terms:

 "I come now to the two limbs of Section 46(1)(a).
 I propose to take up first the limb regarding use of
 the mark in relation to washing machines and spin
 dryers upto a date when one month prior to the
 rectification application.
 The only evidence of use of the mark, produced by
 the appellant, if use it can be called is at page 190
 of the paper-book which is an advertisement of a
 freezer and a washing machine of Toshiba
 36

 published on the 27th August 1985 in the Indian
 Express, New Delhi, also mentioning therein
 certain service centres.
 Now, this is no use of the mark in relation to the
 goods within the meaning of the Trade Marks
 Act."

 The Division Bench also did so, stating:

 "On the merits the learned Judge also found and
 this has not been disputed in appeal that the only
 evidence of the use of the registered mark
 produced by the appellant is an advertisement of a
 freezer and washing machine of Toshiba published
 on 27th August, 1985 in the Indian Express, New
 Delhi and in that advertisement there was mention
 of five service centres. The learned Judge also
 found that such a solitary advertisement is not use
 of the mark in relation to the goods within the
 meaning of Section 2(2)(b) of the Act. The
 learned Judge found that when there are no goods
 at all in physical existence, there can be no use of
 the mark in relation to those goods. The learned
 Judge also found that however, big or famous the
 establishment of the appellant may be, the use of
 the mark must be made in India and not abroad
 and that mere use of the mark for one
 advertisement is insufficient as use otherwise such
 a use may amount to trafficking in trade mark."

54. Appellant had to maintain the service centres because although they

were not in a position to manufacture washing machines or spin dryers or

market the same because of the ban imposed by the Central Government,
 37

but it had been rendering the services to those who had been importing the

said machines. On the one hand, appellant had not been using its registered

trade mark effectively but on the other hand there was a finding that it did

not intend to abandon the said right. It intended to enforce its right under

the Act as against the respondent, suit was filed by it as far back as in the

year 1990. Mr. Gupta commented that the very fact that the appellant did

not obtain any order of injunction as against the respondent for more than

17 years itself indicates that it was not serious in pursuing its case before the

High Court.

55. This is one side of the picture. The other side is that there has been

no injunction as against the respondent. It was free to market its products in

the name of TOSIBA. It had also, however, not been manufacturing

washing machine and spin dryers. A finding of fact has been arrived at by

the learned Single Judge, which has not been overturned by the Division

Bench that the respondent never had any intention to manufacture the said

goods.

 The balancing act between the user of registered trade mark and non-

user should be such which leads to the possibility of neither of the parties

being injured. The learned Single Judge has also held :
 38

 "The mark of the appellant `TOSHIBA' and the
 status of the said word as a registrable mark is
 beyond dispute. It is almost admittedly an
 invented word, a hybrid between the name of the
 city Tokyo and the name of the company of origin
 Shibaura.
 It is also in my opinion beyond dispute that the
 mark `TOSIBA' is so similar to the mark
 `TOSHIBA' as to give the appellant an
 indisputable right to call upon the respondent to
 cease to use that mark in relation to goods for
 which the appellant is registered, in case such
 registration can be maintained by the appellant on
 the register."

56. There was delay on the part of the respondent in filing the application

under Section 46 of the Act. The delay, if any, on the part of the appellant

did not cause any harm to the respondent. It had been using the word

TOSIBA for such a long time without in any way being obstructed to do so

by reason of an order of the Court or otherwise.

57. In the matter of The Trade Mark No.70,078 of Wright, Crossley, and

Co. [1898) 15 RPC 131], it was stated:

 "I think, notwithstanding what was said in that
 case, and has been said in other cases dealing with
 Trade Marks , that an applicant in order to show
 that he is a person aggrieved, must show that in
 some possible way he may be damaged or injured
 if the Trade Mark is allowed to stand; and by
 39

 `possible' I mean possible in a practical sense, and
 not merely in a fantastic view."

58. It is this aspect of the matter which has been missed by the learned

Single Judge and the Division Bench of the Calcutta High Court.

59. We, therefore, are of the opinion that on this short ground, the

impugned judgment cannot be sustained. It is set aside accordingly. We

would, however, request the Delhi High Court to consider the desirability of

disposing of the suit filed by the appellant against the respondent as

expeditiously as possible. The appeal is allowed. No costs.

 .............................J.
 [S.B. Sinha]

 .............................J.
 [Lokeshwar Singh Panta]New Delhi
May 16, 2008

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