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In Re: the Bangalore Woollen, Cotton and Silk Mills Co. Ltd. - Court Judgment

LegalCrystal Citation
SubjectIntellectual Property Rights
CourtMumbai
Decided On
Case NumberO.C.J. Miscellaneous Application No. 138 of 1942
Judge
Reported in(1943)45BOMLR53
AppellantIn Re: the Bangalore Woollen, Cotton and Silk Mills Co. Ltd.
Excerpt:
trade marks act (v of 1940), sections 62, 63-trade marks of textile goods-bombay registrar-applicants, residing outside province of bombay.;the registrar of textile trade marks at bombay is competent to entertain applications for registering trade marks on textile goods made by persons residing outside the province of bombay. - .....trade-mark of the petitioners. the matter comes before me by way of appeal under section 76 of the trade marks act (v of 1940).2. the petitioners are a joint stock company having their principal and registered office at bangalore in the mysore state. they made an application to the bombay registrar for registration of their trade-mark 'tourist' in respect of certain textile goods. the bombay registrar felt a doubt on the construction of sections 62 and 63 of the act about his jurisdiction in the matter, and for reasons stated in his opinion refused to register the trade-mark with a view that the petitioners may approach the high court for the court's opinion.3. in order to appreciate the extent of the bombay registrar's jurisdiction it is necessary to turn to the sections of the act. it.....
Judgment:

Kania, J.

1. This is a petition to have the Court's decision on the question whether the Bombay Registrar has jurisdiction to entertain an application for registration of a particular trade-mark of the petitioners. The matter comes before me by way of appeal under Section 76 of the Trade Marks Act (V of 1940).

2. The petitioners are a joint stock company having their principal and registered office at Bangalore in the Mysore State. They made an application to the Bombay Registrar for registration of their trade-mark 'TOURIST' in respect of certain textile goods. The Bombay Registrar felt a doubt on the construction of Sections 62 and 63 of the Act about his jurisdiction in the matter, and for reasons stated in his opinion refused to register the trade-mark with a view that the petitioners may approach the High Court for the Court's opinion.

3. In order to appreciate the extent of the Bombay Registrar's jurisdiction it is necessary to turn to the sections of the Act. It may be noted that before the Trade Marks Act of 1940 there was only one office at Calcutta for registration of trade-marks of all kinds. The preamble shows that the Act was to provide for registration and more effective protection of trade-marks. The word 'registered' is defined as meaning 'registered under this Act'. Chapter II is headed 'The Register and Conditions for Registration.' Section 4, which is the first section in that chapter, provides :

For the purposes of this Act there shall be established at the Patent Office a Trade Marks Registry, and a record called the Register of Trade Marks.. .shall be kept thereat wherein shall be entered all registered trade marks except those entered in the Bombay Register under Chapter IX...

Sub-section (2) of the said section runs as follows :

(2) Subject to the superintendence and direction of the Central Government, the register shall be kept under the control and management of the Controller of Patents and Designs, who shall for the purposes of this Act be called the Registrar of Trade Marks and is in this Act referred to as the Registrar.

Chapter III provides for the procedure for, and duration of, registration. Under Section 14, Sub-section (1), it is provided that any person claiming to be the proprietor of a trade mark who is desirous of registering it shall apply in writing to the Registrar, and the Registrar may refuse the application or may accept it absolutely or subject to such amendments, modifications, conditions and limitations, if any, as he may think fit. By Sub-section (2) it is provided that in the case of refusal or conditional acceptance, the Registrar, if required by the applicant, shall state in writing the grounds of his decision and the materials used by him in arriving thereat.

4. Chapter IX contains special provisions for textile goods and Sections 62, 63 and 63A(1) are material to be considered. [The sections are set out here.]

5. It is clear that under Section 62 the Central Government has prescribed classes of goods which are called textile goods in relation to which the provisions in Chapter IX would apply and it is made clear that subject to the said provisions the other provisions of this Act shall apply to such trade marks just as they apply to trade marks used in respect of other classes of goods. It is therefore clear that subject to those provisions contained in Chapter IX, which will apply to textile goods only, the rest of the provisions, when not in conflict with the said provisions, must apply to the textile goods also. Section 63 quoted above makes it clear that the Bombay Registrar has the same jurisdiction in respect of textile goods as the Registrar mentioned in Section 4. A perusal of the words used in Sub-sections (1) and (2) of Section 63 and comparing the same with the words used in Sub-sections (1) and (2) of Section 4 makes the position clear. The wording is almost similar. It is therefore clear that the Bombay Registrar, in respect of the textile goods, has jurisdiction in the matter of registration of trade marks to the same extent as the Registrar mentioned in Section 4. Section 63(5) further contemplates (as indicated by the proviso) that by reason of the exercise of the special provisions contained in Chapter IX and the rest of the Act there may arise a conflict of jurisdiction or overlapping, and in such event the decision of the Central Government has to be invited. Section 63A(i) is the section by reason of which doubt was created in the mind of the Bombay Registrar in dealing with the petitioners' application. It appears to be thought that that sub-section limited the jurisdiction of the Bombay Registrar to applications made only by persons residing within the provinces mentioned therein. To give that meaning to that sub-section one will have to transpose the word 'only' as the first word in that sub-section. In my opinion it is not permitted to transpose words deliberately placed in particular position and thereby give a different meaning to the particular section. As the sub-section is framed, the rights of the applicants residing within the particular provinces mentioned in the said sub-section are limited to get registration of trade marks of textile goods only by approaching the Bombay Registrar. I am unable to read that section as excluding the jurisdiction of the Bombay Registrar to entertain an application made by a person residing outside those provinces for registration of trade marks of textile goods. To put it in other words that sub-section limits the rights of persons living within the specified provinces for registration of trade marks of textile goods, but it does not limit the jurisdiction of the Bombay Registrar to entertain applications which is given to him by Section 62 read with Section 63 and] the other provisions of the Act. In my opinion therefore the Bombay Registrar has jurisdiction to entertain the application of the petitioners, and I declare that he has such jurisdiction. He will accordingly proceed with the application.

6. I am informed that this matter has been brought to Court because several thousands of applications are awaiting disposal and as the applicants have brought the matter for the Court's opinion the parties have agreed that the petitioners should pay the agreed amount of costs of the Bombay Registrar.


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