JUDGMENT
S. Jagadeesan, Chairman
1. The applicant filed the application for setting aside the order dated 27.4,1998 of the Registrar of Trade Marks, the 4th respondent herein recording in the Register the second respondent as the subsequent proprietor of the trade mark 477067, Nandi Seeds, in class 31, jointly owned by M/s. M.V. Subbaiah; M.V. Subha Rao; M. Anjaneyalu and K. Sivaji in T.M. 24 dated 7.12.95 and to set aside the order of the Registrar of Trade Marks, the respondent herein, recording in the register the 3rd respondent Nandi Seeds Private Limited as subsequent proprietor by order dated 29.4.98 in TM 24 dated 3.4.98 and to rectify and remove from the Register the Trade Mark No. 477067 in class 31 presently in the name of the 3rd respondent herein.
2. The case of the applicant is that the applicant is engaged in the business of production and marketing of various kinds of seeds i.e., Hybrid Bajra, Hybrid cotton seeds, castor seeds, wheat seeds, muster seeds, etc. The predecessor of the applicant, Nandi Seeds Corporation started the business in the year 1976 under the trade mark “Nandi”. The said trade name for the purpose of their business was adopted as trade mark. The predecessor of the applicant got the name “Nandi” registered under registration No. 353869 from 26.9.1979 on the basis of their use since 1976. Subsequently, the said trade mark was assigned to the applicant i.e., “New Nandi Seeds Corporation”. The assignment was approved by the Registrar of Trade Marks and was also advertised in the Trade Mark Journal dated 1.3.93. Thus, the applicant is the registered proprietor of the said trade mark ‘Nandi’.
3. While so, the first respondent was trading under the name and style of M/s. Nandi Seeds, claiming to be the registered proprietor of trade mark “Nandi” in respect of the seeds. The applicant was not aware, as to how the first respondent became the registered proprietor of trade mark “Nandi”. The first respondent also did not obtain any permission from the applicant. On coming to know that the first respondent was producing and marketing the products using their trade mark “Nandi”, with the same and similar logo used by the applicant, the applicant issued a notice dated 5.4.87 to the first respondent calling upon him to refrain from using the disputed trade name/mark “Nandi” as well as the device and logo in respect of the seeds. The first respondent through his advocate sent a letter dated 5.5.87 refuting the charge and contended that the first respondent was not aware about the adoption of the trade mark himself in the trade by using the disputed trade mark. However, the applicant came to know from the local market at Amreli in Gujarat State that the 3rd respondent company, incorporated under the Companies Act, of which the first respondent is the Managing Director, had marketed cotton seeds in the name of Nandi seeds. On the basis of the said information, the applicant filed Civil Suit No. 2/97 in the court of District Judge at Amreli against the 3rd respondent as well as one Shiv Agro Chemicals, the distributors of the 3rd respondent company for infringement of the applicant’s trade mark. The applicant contended that the trade mark “Nandi” and the device thereon were registered in favour of the applicant not only under the Trade Marks Act but also under the Copyright Act and as such the respondents cannot use the identical trade mark for their trade. In the reply to the injunction application, the first respondent stated that he was earlier carrying on business in the name of “Nandi Seeds” and he also obtained the registration certificate of the trade mark on 14.10.94. Thereafter, under an agreement dated 20.7.96 the said first respondent transferred the use of the said trade mark in favour of the 3rd respondent company and consequently the 3rd respondent company claimed right to market their goods under the disputed trade mark.
The learned District Judge, Amreli granted interim ex pane, injunction on 26.11.97 against the 3rd respondent and subsequently the interim injunction order was made absolute. The 3rd respondent, being aggrieved by the order of the trial court, preferred an appeal before the High Court of Gujarat at Ahmedabad. The said appeal was disposed of by the High Court on 28.9.98. The High Court confirmed the order of injunction granted in favour of the applicant by the trial court, with certain variations. The High Court permitted the 3rd respondent to produce and market the seeds in the States of Andhra Pradesh, Karnataka and Maharashtra. Further, the High Court permitted the 3rd respondent to deal in products of cotton seeds and maize seeds in the State of Madhya Pradesh. The High Court confirmed the order of injunction granted by the District Court in favour of the applicant, in respect of other States. By a subsequent order, the High Court permitted the first respondent till the disposal of the suit to market their products in the State of Tamil Nadu also. As a result, the 3rd respondent was permitted to market their products in the brand name of “Nandi” in the States of Andhra Pradesh, Maharashtra and Tamil Nadu and also market its products of cotton seeds and maize seeds in the State of Madhya Pradesh subject to the right and the contention of the parties to be decided in the suit. The first respondent Mr. Subbaiah, transferred and assigned all his rights in the said trade mark in favour of the 2nd respondent, who in turn transferred the same in favour of the 3rd respondent herein, who became the subsequent proprietor and owner of the registered trade mark. The applicant made detailed enquiries at the Registry and also traced the relevant trade mark transferred. From the two orders of the Registrar, gazetted in the trade mark journal 1178, it is evident that it is only on a request from the first respondent to record the assignment of the trade mark in favour of the joint proprietors of the partnership firm, the same was done in favour of second respondent herein. The further entry in the trade mark journal reveals that the second respondent firm applied for transfer on 3.4.98 and the same was effected in the Registry on 29.4.98. These transfers by the first respondent and thereafter by the second respondent were made, when interim orders of the civil court was in force, totally surpassing the pendency of the civil court proceedings. The second respondent made an application for transfer of the ownership in favour of the 3rd respondent even before the second respondent became the owner of the said disputed trade mark. When the second respondent filed the application for transfer, the application filed by the first respondent to change the ownership in favour of the 2nd respondent was still pending. Hence the application filed by the second respondent for transfer of the ownership of the trade mark in favour of the 3rd respondent itself is not maintainable and ought to have been rejected. The deed of assignment dated 25.2.91 in favour of the second respondent firm made it clear that the 3 partners shall have no right in the goodwill of the firm.
However, contrary to the terms of assignment the letter of request in TM 24 given by the 2nd respondent mentions that the partnership firm is having goodwill of the business. When different procedures has been prescribed for the assignment of the trade mark registered without goodwill and with goodwill the entire procedure adopted by the respondents for transfer of the registered trade mark is illegal and virtually many of the statements filed before the Registrar of trade mark are not true and correct and thereby the transfer was obtained by fraud on the Registry. The first respondent cannot be said to be the bona fide user, who is entitled for the concurrent registration. There is absolutely no record to establish the use of the disputed trade mark by the first respondent for some considerable time prior to the filing of the application. In the absence of any such record, it is not open to the first respondent to claim to be the bona fide user entitled for the concurrent registration. As the entire procedure adopted by the Registrar cannot be sustained under law, the registration made in favour of the second and third respondents also cannot be sustained and are liable to be set aside. The applicant filed O.P. 169 of 1999 on the file of High Court of Madras seeking to set aside of the order of the Registrar of Trade Marks recording the second and third respondent as the subsequent proprietor of the Trade Mark “Nandi Seeds” and also to set aside the order of the Registrar of Trade Marks by order dated 27.4.98 and 29.4.98 respectively. The applicant also prayed for rectification of the register removing the Trade Mark registered as No. 477067 in class 31 presently in the name of Nandi Seeds Pvt. Ltd.
4. The respondents 1 to 3 herein filed common counter stating that the first respondent has been carrying on the business as manufacturer of seeds under the trade mark of “Nandi” since 1980. On 5.4.87 the Applicant issued a notice to the first respondent calling upon the first respondent to stop using of the trade mark “Nandi” for his products. On 5.5.87 the first respondent sent a reply stating that he is using the disputed trade mark since 1980 and requested the Applicant to furnish a copy of the certificate and also reserved his right to give a detailed reply. Thereafter the Applicant did not take any steps till the filing of the suit on the file of the District Court, Amreli in 1997. The first respondent applied for the registration of the trade mark “Nandi” in class 31 on 18.8.87. The examination report sent by the Registrar of the Trade Marks reveals that the Applicant’s mark is a pending mark. The Registrar of Trade Marks granted the registration of the trade mark “Nandi” in favour of the respondent only after careful consideration of the materials placed by both the parties. The first respondent entered into a partnership with Mr. M.V. Subba Rao and two others on 25.2.91 and applied to the Trade Marks Registry to register the partnership firm “Nandi Seeds”, the second respondent herein, as subsequent proprietor of the registered Trade Mark No. 477067 in class 31. The said partnership was again reconstituted under a deed dated 9.9.92. On 30.5.96, the first respondent floated a private limited company, the 3rd respondent, in which the first respondent is the Managing Director. On 30.7.96 the first and second respondents assigned the registered trade mark in favour of the 3rd respondent. The 3rd respondent had filed a request for registering them as the subsequent proprietor of the disputed trade mark on 26.2.98. Considering the request filed by the second and third respondent, the Registrar of Trade Mark allowed the request made by them, by orders dated 27.4.98 and 29.4.98 respectively. The respondents are using the disputed trade mark for a very long time without any interruption from any third party and as such the registration in their favour cannot be questioned after a lapse of considerable time. The first respondent requested the applicant by their reply dated 5.5.87 to produce the copy of the certificate of registration. The Applicant neither sent any reply, nor forwarded the copy of the certificate of registration. The respondents are continuously using the disputed trade mark and only to safeguard their right to the disputed trade mark, the first respondent applied for the registration of the said trade mark on 18.8.87. The Applicant did not challenge the assignment in favour of the 3rd respondent and as such the registration of the trade mark in favour of the third respondent is not affected. The interim order granted by the learned District Judge Amreli is not a final order and it is an interim order pending disposal of the suit. The impugned orders of the Registrar are only registering the change of ownership of the trade mark in the records of the Registry. As the Applicant did not challenge the assignment in favour of the 2nd and 3rd respondent, the impugned orders of the Registrar is quite valid. The first respondent produced all the necessary documents to establish his user since 1980. Section 11 of the Trade and Merchandise Marks Act has no relevance to the instant case. The first respondent was a concurrent user and as such entitled for the registration of the disputed trade mark under Section 12(3) of the said Act. The first respondent was carrying on the trade independently till 1.4.85 and thereafter he was carrying on the business with the assistance of other persons who became the partners under the partnership deed dated 25.2.91 and 9.2.92. The said partnership firm had started using the trade mark in question from the date of the assignment of the same in their favour. The first respondent being a long user of the disputed trade mark is entitled for the concurrent registration under Section 12(3) of the said Act. Since the Registrar of Trade Mark granted the registration in favour of the respondents after considering the documentary evidence, it is not open to the Applicant to seek for the rectification so belatedly. The Applicant cannot maintain the petition since he is not an aggrieved person. The registration of the trade mark having been granted in favour of the respondents restricting in respect of the sales in the States of Tamil Nadu, Andhra Pradesh and Maharashtra, the Applicant cannot at all be aggrieved by the same. The High Court of Gujarat also vacated the, interim order granted by the District Judge, Amreli and permitted the respondents to use the trade mark in respect of the sale in the above said restricted States. Hence, there is absolutely no merit in the application and the O.P. is liable to be rejected.
5. The said O.P. No. 169 of 1999 filed by the applicant on the file of the High Court of Judicature at Madras was transferred to the IPAB after the constitution of the IPAB under the Trade and Merchandise Act are numbered as TRA 59 of 2003. The learned counsel for the applicant contended that the applicant is engaged in the manufacturing and selling of different varieties of seeds under the registered Trade Mark “Nandi” with a device. On coming to know that the first respondent is also using the same trade mark “Nandi” in 1987, the Applicant issued a notice to the first respondent on 5.4.87. Though the 1st respondent sent a reply asking for the certified copy of the registration, the Applicant did not sent any reply since the registered trade mark was available in the Register maintained by the Registrar of Trade Marks. However, it is further contended that in view of the notice the first respondent stopped using the disputed trade mark. In 1997, when the Applicant once again noticed that the respondents are using the trade mark “Nandi”, the Applicant filed a suit on the file of the District Court, Amreli and obtained an ex parte injunction order on 26.11.1997 which was made absolute subsequently. The respondent preferred an appeal on the file of the Gujarat High Court. In the meanwhile the first respondent having obtained the registration, the High Court modified the order of injunction granted by the trial court. It is contended that the 1st respondent fraudulently obtained the registration of the disputed trade mark in his favour since the registration was subsequent to the notice issued by the Applicant to the 1st respondent. When the 1st respondent was informed about the registered trade mark of the Applicant, the 1st respondent ought to have verified Register of the Trade Mark maintained by the Registrar of Trade Marks and made a bona fide search. Since this has not been done, there is absolutely no bona-fide in the conduct of the 1st respondent. Further, the claim of the 1st respondent that he is using the disputed trade mark since 1980 was not established. The first invoice of the 1st respondent is of the year 1980 and the application for registration is dated 18.8.1987. In the absence of any evidence to establish the long usage, the 1st respondent is not entitled for the registration. The Registrar of the Trade Mark having found from the Examination Report that the applicant’s mark is available as conflicting mark, there is absolutely no justification for the Registrar of Trade Mark in allowing the registration in favour of the 1st respondent by restricting the area of sales. With regard to the assignments among the respondents, the learned counsel for the applicant contended that the 1st respondent filed an application for transfer of the disputed trade mark in favour of the 2nd respondent, the partnership firm concerned. Before ever, the transfer was effected and the 2nd respondent became the registered owner, the 2nd respondent made an application for transfer of the ownership of the trade mark in favour of the 3rd respondent company. When that be so, the application made by the 2nd respondent is not valid since the 2nd respondent is not the owner of the disputed trade mark on the date of application for transfer. Subsequently, the order passed in favour of the 3rd respondent transferring the ownership of the trade mark also becomes null and void as the claim is by a non-entity person. It is further contended by the learned counsel for the applicant that the 1st respondent having received the notices from the District Court and also knowing fully well about the interim injunction totally suppressed the materials before the Registrar and sought the registration in favour of the 1st respondent and also sought the transfer of ownership of the disputed trade mark in favour of the 2nd and 3rd respondent. Even on the basis of the suppression of material facts by the respondent before the Registrar of Trade Mark, the impugned orders of the Registrar of Trade Marks are liable to be set aside.
6. The learned counsel for the respondent Ms. Usha on the other hand contended that the first respondent sought the registration of the trade mark “Nandi Seeds” with the device “Nandi” and made the requisite application before the Registrar of Trade Marks. The said application is dated 18.8.87 wherein the first respondent claimed that he is the sole proprietor and trading as “Nandi Seeds” and he is using the trade mark since 1980. When the Applicant sent a letter calling in question the first respondent for the use of the disputed trade mark, the first respondent promptly replied asking for the registration particulars of the trade mark of the applicant. Since no reply was received, the first respondent continued the use of the disputed trade mark. Ultimately the Registrar of Trade Mark granted the registration of the trade mark “Nandi Seeds” with the device Nandi in class 31 for seeds under No. 477067 in favour of the first respondent on 14.10.94. The said registration was subject to the amendment restricting in the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra. Thereafter, the first respondent was using the disputed trade mark as a registered owner. Subsequently, the second respondent partnership firm was constituted by the first respondent and the second respondent made a request for the change of ownership of the trade mark in Form TM 24 on 6.12.95. Before ever the said application was disposed of, the second respondent assigned the trade mark in favour of the 3rd respondent, a company floated by the first respondent who being the Managing Director. The Registrar of Trade Marks took into consideration the deed of partnership of the second respondent and the deed of assignment in favour of the 3rd respondent company and ultimately passed orders allowing the applications filed by the 2nd & 3rd respondents for transfer of ownership of the disputed registered trade mark. The first respondent and thereafter the second and third respondent claim to be in continuous and open use of the disputed trade mark since 1980. Even though the applicant sent a notice in 1987 thereafter they did not pursue the matter in respect of the first respondent using the disputed trade mark. The applicant filed the civil suit before the District Court Amreli only in November, 1997 and as such there was considerable delay on the part of the applicant in making a protest over use of the disputed trade mark by the respondents. On that short ground the application is liable to be dismissed.
The learned counsel for the respondent relied upon the judgment reported in AIR 1979 Madras 157, National Match Works, Sivakasi v. S.P. Karuppanna Nadar and Ors. as well as AIR 1963 SC 449 Amritdhara Pharmacy v. Satya Deo Gupta for the proposition that the delay on the part of the applicant is fatal and their applications are liable to be dismissed. It is further contended by the learned counsel for the respondent that the pendency of the civil proceedings before the court has nothing to do with the proceedings before the Registry of Trade Mark with regard to the applications filed by the second respondent as Cell as the 3rd respondent for transfer of ownership of the disputed trade mark. Hence, the non-mentioning of the pendency of the civil proceedings before the Registrar of Trade Mark has no relevance and as such cannot be taken as suppression of material fact. In addition, it was contended that the registration in favour of the first respondent with regard to the disputed trade mark having been restricted to the areas of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra, there is absolutely no confusion in the trade. Even otherwise, there would be no confusion in the trade by the use of the disputed trade mark by the respondents. At any rate, the respondents are entitled for the registration as concurrent user in accordance with the Sub-section (3) of Section 12 of the Trade and Merchandise Act and consequently no interference is called for from the Appellate Board.
7. We have carefully considered the contentions of both the counsels. The issues arise for consideration are:-
(i) Whether the 1st respondent is bona fide and concurrent user since 1980;
(ii) Whether the respondents are entitled for the registration of the disputed trade mark as the concurrent user under Section 12(3);
(iii) Whether the orders of the Registrar of Trade Mark in favour of the 2nd and 3rd respondents transferring the ownership of the disputed trade mark are valid in law;
(iv) What relief the parties are entitled?
8. There is no dispute that the applicant is the registered owner of the trade mark “Nandi” with a device in T.M. No. 353869 in class 31. The registration was granted on 28.4.83 w.e.f. 26.9.79. In 1993, the applicant reconstituted and became the second proprietor of the said trade mark “Nandi” claiming that the Applicant was using the trade mark for number of years openly, extensively and continuously. The applicant is also the registered owner of the trade mark “Nandi” with the device “Nandi” and as such the Applicant has the exclusive right to use the said trade mark and restrain others from manufacturing, marketing or using any mark identical de facto as registered trade mark. When the goods are also being the same, the 1st respondent is not entitled to use the said trade mark. For the notice sent by the applicant the 1st respondent sent a reply on 5.5.87 through their counsel in which the 1st respondent has stated that he is the proprietor of “Nandi Seeds” and the 1st respondent is using the same from 1979-80 onwards. Further, the first respondent requested the Applicant to send a copy of the certificate of registration of the trade mark. The first respondent filed an application for registration of the disputed trade mark “Nandi” alongwith the device under No. 477067 in class 31 on 18.8.87. The Examination Report received by the first respondent reveals the Applicant’s trade mark as pending. Thereafter, the registration was granted in favour of the 1st respondent on 14.4.94.
9. The main contention of the learned counsel for the applicant is that the 1st respondent is not a honest and bona fide user of the disputed trade mark. Further, they have not established the long usage of the disputed trade mark. The application for registration of the disputed trade mark was filed by the first respondent only after the receipt of the notice from the applicant’s counsel. Hence, there is absolutely no honesty in the conduct of the first respondent in seeking the registration of the disputed trade mark in No. 477067 in class 31.
10. We find some force in the contention of the learned counsel for the applicant. As already stated the applicant issued the notice on 5.4.87 to the first respondent calling upon him to stop using of the infringed trade mark. The applicant claimed to be the registered owner of the trade mark “Nandi” with the device. In his reply dated 5.5.87 the first respondent stated that he was using the disputed trade mark from 1979-80 and as such he is a bona fide user of the said trade mark for continuous 8 years. He also called upon the applicant to send the registration certificate of their trade mark. When once the Applicant informed the first respondent that the applicant is the registered owner of the trade mark “Nandi” with the device and the first respondent is infringing the same, it is for the first respondent to make a thorough search in the manual. There is absolutely nothing on record to show that the first respondent had made any attempt to find out as to whether the applicant’s trade mark is registered or not. Apart from that, the first respondent claims that he was using the trade mark since 1980. The records produced before the Registrar as well before us reveals that the first respondent’s first invoice is dated 28.5.86. The second invoice is 5.5.87, the third one is dated 20.6.89. The other invoices are dated 18.7.90 and 5.5.91 and 15.6.91. When the question of honest and concurrent user is to be considered, the relevant date for consideration is the date of the application of the first respondent for registration. Prior to the filing of the application for registration by the 1st respondent there are only 2 invoices dated 28.5.86 and 5.5.87.
11. In the affidavit filed before the Registrar claiming the user of the disputed trade mark, the first respondent has stated his sales turnover as follows:-
Year Sales Turnover (Rs. in lakh) 1980-81 3.50 1981-82 6.00 1982-83 10.00 1983-84 12.60 1984-85 15.00 1985-86 12.00 1986-87 25.00 1987-88 24.00 1988-89 37.00 1989-90 60.00 1990-91 75.00 1991-92 95.00 Even though from 1980 to 1985 the sales turnover was given, there is absolutely no material placed either before the Registrar of Trade Mark or before us for the use of the disputed trade mark by the first respondent. One more aspect is that, in the affidavit the first respondent has stated that the sales turnover furnished by him is "approximate". For a trader, he must be definite about the annual sales turnover and he cannot say approximate which word really gives rise to a doubt as to whether the statement of turnover furnished by the first respondent reflects the actual sales.
12. Apart from that, one other aspect is that the first respondent has filed the application for registration of the disputed trade mark on 18.8.87 after the receipt of the notice issued by the Applicant claiming to be the registered proprietor of the trade mark. When once it was brought to the notice of the first respondent that the applicant is the registered owner, it is for the first respondent to establish as to his bona fides in filing the application for registration. The first respondent neither in his affidavit before the Registrar of the Trade Mark nor in his counter before this Board has come out with any particulars with regard to the steps taken by him to find out as to whether any trade mark of the same type had been registered or not. The first respondent was put to notice about the registration of the another trade mark of the same type. We are of the view that it is for the first respondent to make a search in the manual or at least make an enquiry before the Registry of Trade Mark to find out as to the availability of the registered trade mark. In the absence of any steps taken by the first respondent to find out the availability of the registered trade mark of same type, we conclude that there is absolutely no bona fides on the part of the first respondent in filing the application itself for registration of the disputed trade mark. Hence, with regard to the issue No. 1, we hold that the first respondent is not a bona fide user openly and continuously for considerable period of the disputed trade mark. Consequently, he is not entitled for registration of the disputed trade mark.
13. Coming to the second issue, a major portion of the discussion of the first issue covers this also. To claim the concurrent registration under Section 12(3) it is for the first respondent to establish the usage of the trade mark continuously and openly for considerable period prior to the filing of the application for registration. The application was filed by the first respondent for the registration only in 1987. The first respondent produced only 2 invoices to establish the use of the disputed trade mark prior to the filing of the application for registration. They are dated 28.5.86 and 5.5.87 almost one in a year. Even though the quantity may be less and there may be some break in the continuity but still to claim under Section 12(3) the first respondent must establish that he was using the disputed trade mark considerably for a lengthy period thereby his goods had acquired some identity in the market. The quantum of sale is immaterial. But is must be continuous usage and the material to establish the same are the relevant factors. There is absolutely no material placed by the first respondent on this aspect and as such we do not think the first respondent is entitled for concurrent registration of the trade mark. Rightly the Registrar has not granted the registration under Section 12(3).
14. When the Examination Report received by the first respondent reflect that the Applicant’s trade mark as floated trade mark, no steps were taken either by the first respondent or by the Registry of the Trade Mark to issue any notice to the applicant.
15. Though the learned counsel for the respondent contended that there is delay on the part of the Applicant in initiating the legal proceedings in respect of the first respondent’s trade mark, we are of the view that the delay cannot be a sole ground to reject the relief. The first respondent has produced the invoice one for each year i.e., 1989, 1990 and 1991. The first respondent did not produce the annual sales turnover authorised by the auditor or attested by any sales tax authority. In the absence of any material, we are of the view that it cannot be safely concluded that the first respondent was engaged in the trade openly, extensively and continuously. Hence, the applicant cannot be blamed that he initiated the legal proceedings belatedly in spite of his knowledge about the first respondent’s continuous trade.
16. The learned counsel for the applicant Ms. Glady’s Daniel vehemently contended that the first respondent got the registration on 14.4.94. While the application for registration of the first respondent was pending, the second respondent partnership was constituted between the first respondent and three others. The second respondent filed a request in Form TM 24 to bring themselves on record as subsequent proprietors of the disputed trade mark No. 477067 w.e.f. 1.4.85. When the application for registration was filed by the first respondent only on 18.8.87 and the registration in favour of the first respondent was also granted only w.e.f. 18.8.87 it is not clear as to how the second respondent can claim the registered ownership w.e.f. 1.4.85. It is also contended that the second respondent under the partnership deed dated 25.2.91 had no right to goodwill of the business. Before ever, the said application filed by the second respondent was disposed of, another application on Form 24 was filed by the 3rd respondent company to register their name as the proprietors of the disputed registered trade mark No. 477067 in class 31. The Registrar passed orders on 27.4.98 on the application filed by the second respondent recording the second respondent as the registered owner of the disputed trade mark and on 29.4.98 the application filed by the 3rd respondent recording as the subsequent proprietor. The main objection on these issues by the learned counsel for the applicant is that the second respondent has become the registered owner only pursuant to the order dated 27.4.98 and when that be so, the application filed by the 3rd respondent claiming to be the subsequent proprietor pursuant to the transfer of ownership by the second respondent cannot be sustained since the second respondent was not at all the registered owner or the proprietor of the disputed trade mark on the date of the transfer in favour of the 3rd respondent. She finally contended that in view of the same, the transfers made in the registry in respect of the ownership in favour of the 2nd as well as 3rd respondent cannot be sustained. We do not find any force in the above contention since the partnership agreement is a tripartite one. Moreover, we are of the view that the prospective proprietor, whose application under TM 24 is pending, can transfer his right and consent for transfer of proprietorship in favour of the transferee. However, we are of the view that it is unnecessary for us to elaborately deal with this aspect in this case in view of our finding that the first respondent himself is not entitled for the registration of the disputed trade mark in his favour. In such circumstances, the first respondent has no right to transfer the disputed trade mark either in favour of the 2nd respondent or in favour of the 3rd respondent and as such neither the second nor the third respondent can claim any ownership.
17. In view of our above findings, the orders of the Registrar, registering the disputed trade mark in the names of the respondents 1 to 3 are liable to be set aside and accordingly the application is allowed and we direct the removal of the trade mark No. 477067 from the registry and further hold that the transfer by the first respondent in favour of the second respondent and the consequent transfer in favour of the third respondent are also cannot be sustained in law.