The applicants have filed these applications to set aside the order of the Deputy Registrar of Trade Marks, Mumbai, dated Texmo Industries, a partnership firm was started texmo industries pump division symbol the year by one Shri R. Ramachandran and his brother Shri R. Ramachandran and Shri Texmo industries pump division symbol.
Kumaravelu as Partners and this firm was to manufacture self priming pumps upto 1. In the yearthe 2nd respondent firm Aqua Sub Engineering was formed with both the brothers as Partners for the purpose of manufacturing submersible pump sets only. Inone of the partners and brother Shri R. In his place, his wife, Mrs. Damayanthi Ramachandran, the second applicant was brought in as a Partner in the said firms. Texmo Industries was reconstituted under the deed of partnership dated texmo industries pump division symbol Pursuant to a request made in Texmo industries pump division symbol TM 24, the change was ordered on Damayanthi Ramachandran and Shri R.
Subsequently, there was a family arrangement on 4. Damayanthi Ramachandran, and by virtue of the said arrangement, four documents came into existence on Aqua Pump Industries, with the induction of new Partners and the retirement of Mrs. Aqua Sub Engineering with the retirement of Mrs. Texmo Industries with the retirement of Mr. Kumaravelu and the fourth document is an agreement between Shri R. Under the documents reconstituting the partnership, the newly reconstituted firm with Shri R.
Aqua Sub Engineering with the same rights in respect of the manufacture and sale of the goods as before. Texmo Industries alongwith the new partners. Under the agreement between Shri R. Aqua Sub Engineering are entitled to use the trade mark 'TEXMO' restricted to the products described in the Schedules 1 and 2 of the deed of agreement.
Subsequent to the reconstitution of the firm and the agreement between Mrs. Kumaravelu, the first applicant filed an application in TM 24 on The same was ordered in July, In or aboutthe first applicant found that the respondents No.
Hence, the first applicant caused a notice on 2. By letter dated 9. Kumaravelu requested the first applicant not to initiate action against them and requested for settlement. Though, there was continuous correspondence, no final settlement was arrived and consequently, the first applicant informed the third respondent by letter dated The second applicant, in August,came to know from the publication of the bifurcation and allotment of the trade mark in favour of the respondents No.
By virtue of the bifurcation, the partners of respondents No. The applicant came to know that the order dated The Registrar has passed the order without any notice to the applicants and the applications filed by respondents No.
The order of bifurcation passed by the Registrar is in violation of principles of natural justice and consequently the same is liable to be set aside. The splitting of the first applicant's trade mark without any notice to them is also in violation of the principles of natural justice. Damayanthi Ramachandran and also subsequent thereafter. Hence, the order of the Registrar of Trade Marks bifurcating both the trade marks are to be set aside and the necessary rectification showing the first applicant as the sole registered proprietor of the registered trade mark 'TEXMO' has to be carried out.
The applicant filed O. Ps were numbered as TRA Nos. In the counter affidavit, he has admitted about the commencement of the partnership firms with his brother and thereafter the division of the products among the newly constituted Partnership firms Aqua Pump Industries and Aqua Sub Engineering and about the reconstitution of the partnership firms with Mrs. Damayanthi Ramachandaran after the death of his brother, one of the partners. His case is that the terms of agreement entered into between himself and Mrs.
Damayanthi Ramachandaran on Damayanthi Ramachandaran and Shri R. Kumaravelu retiring from the concerned firms of the other group, it was agreed between them that the trade mark 'TEXMO' to be used by all the three firms and so far as respondents No. The scheme of agreement and the reconstitution of the firms clearly texmo industries pump division symbol about an agreed demarcation between the two branches in relation to the ownership of the three firms as well as the use of the two trade marks.
So far as the use of the two trade marks is concerned, the parties agreed that with respect to the goods which were actually being manufactured and dealt with by the three firms hitherto prior to the agreement were granted ownership of the two trade marks with respect to such goods alone.
The second applicant filed form TM 24 on 6. Those three documents had to be necessarily read together with the Deed of Agreement of the same date entered into between the second applicant and Shri R. Since the second applicant failed to produce the Deed of Agreement alongwith the reconstitution of the Partnership and Retirement deeds, the respondents also filed a request in form TM 24 on 5.
From the time of inception of the respondents firms No. The exclusive right created by the trade mark agreement dated The action of the texmo industries pump division symbol by filing these rectification applications is nothing but to harass the respondents and to deprive them of their right derived under the agreement. Since, the Registrar has given effect to the intention of the parties, there is no illegality in the bifurcation of the trade marks and consequently the application have to be dismissed.
Aqua Sub Engineering was formed in Hence, the respondents No. Texmo industries pump division symbol Industries, the retirement deed evidencing the retirement of Mrs. Aqua Sub Engineering were executed. Similarly, the retirement of Shri R. Texmo Industries was executed alongwith the reconstitution of all the three firms with new partners. On the same day, a Deed of Agreement was also entered into between the original partners.
Under the Deed of Agreement, the respondents No. To endorse the assumed assigned right, the respondents did not file the necessary applications as contemplated under the said Act.
The signature of the assignor or the consent application by the assignor as well as the assignee ought to have been filed. The respondents, on texmo industries pump division symbol own filed the application in form TM 24 for registering themselves as subsequent texmo industries pump division symbol. The Registrar, without issuing any notice to the applicants, passed orders in all the three applications submitted by the respondents No.
Consequently, the order texmo industries pump division symbol the Registrar is in violation of the principles of natural justice. He further contended that there is no assignment of goodwill in favour of respondents No. In such a case, the assignment has to be enforced within six months. Since the Registrar acted without jurisdiction, the rectification is sought for. Per contra, Shri N.
Sharma, for Shri C. Daniel, on behalf of the respondents No. Texmo Industries, the first applicant firm was manufacturing all the goods. Aqua Sub Engineering texmo industries pump division symbol formed. As and when the two firms were formed, the manufacture of texmo industries pump division symbol of goods were also divided among themselves. Without any confusion in the trade, all the three firms were involved in manufacturing the distinct goods as agreed upon.
When the partners in all the three firms are the same, no question of grant of license to respondents No. The Deed of Agreement dated Kumaravelu is an integral part of the other three agreements of the Deed of Partnership and the Deed of Retirement. Hence, the consent mentioned in the Deed of Agreement is only by way of assignment for the use of the same trade mark by respondents No.
When the contents of the documents were not disputed and when the conduct Of the parties as well at the circumstances under which the documents have come into existence were also not disputed, it is not open to the applicants now to contend that the consent is only a license. Similarly, Section 39 2 of the Texmo industries pump division symbol has no application as there is no proposal for assignment. The assignment has already been made in since when respondents No. The Registrar, after perusal of the documents has passed the order.
When the applicants have also filed form TM 24 not only to give effect to the reconstitution of the partnership firm but also to record them as proprietors of the trade mark without notice to the respondents, it is not open to the applicants to contend that the respondents have violated the procedure contemplated under the statute.
The action of the respondents is only a counter action for the action of the applicants No. The Registrar has given effect to the intentions of the parties only and as such, no rectification is needed. Texmo industries pump division symbol, for the manufacture and sale of electrical motors and different types of pumps.
The registration was granted in respect of the following goods:. This was in the yearwith an agreement that the first respondent is to manufacture self priming pumps upto 1. Similarly, in the yearthe second respondent firm was formed with the same partners with an agreement for manufacturing submersible pump sets alone. In September,one of the brothers Shri R. Damayanthi Ramachandran, the second applicant was admitted as partner in the three texmo industries pump division symbol with effect from The business was continued till dispute arose between the partners.
A family arrangement was arrived at on 4. Kumaravelu, the third respondent herein representing the first applicant firm and the respondents No.
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