{"id":230830,"date":"2007-03-14T00:00:00","date_gmt":"2007-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ms-meghraj-biscuits-industries-vs-commissioner-of-central-on-14-march-2007"},"modified":"2017-06-03T12:15:33","modified_gmt":"2017-06-03T06:45:33","slug":"ms-meghraj-biscuits-industries-vs-commissioner-of-central-on-14-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ms-meghraj-biscuits-industries-vs-commissioner-of-central-on-14-march-2007","title":{"rendered":"M\/S. Meghraj Biscuits Industries … vs Commissioner Of Central … on 14 March, 2007"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M\/S. Meghraj Biscuits Industries … vs Commissioner Of Central … on 14 March, 2007<\/div>\n
Author: Kapadia<\/div>\n
Bench: S.H. Kapadia, B. Sudershan Reddy<\/div>\n
           CASE NO.:\nAppeal (civil)  8739-8741 of 2001\n\nPETITIONER:\nM\/s. Meghraj Biscuits Industries Ltd\n\nRESPONDENT:\nCommissioner of Central Excise,U.P.\n\nDATE OF JUDGMENT: 14\/03\/2007\n\nBENCH:\nS.H. KAPADIA & B. SUDERSHAN REDDY\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
KAPADIA, J.\n<\/p>\n
\tAggrieved by the decision of Customs, Excise and
\nGold Control Appellate Tribunal (CEGAT) dated
\n11.4.2000, the appellants (assessee) have come by way of
\ncivil appeals under Section 35L of the Central Excise Act,
\n1944.\n<\/p>\n
Appellants were engaged in the manufacture of
\nbiscuits classifiable under Sub-Heading 1905.11 of the
\nCentral Excise Tariff.  The biscuits were sold under the
\nbrand name “Meghraj”.  Under show cause notices it was
\nalleged that the appellants herein (assessee) have sold
\nthe biscuits under the brand name “Meghraj”, which was
\na registered trade mark of Kay Aar Biscuits (P) Ltd. who
\nwas using the said trade mark on manufacture of
\nbiscuits themselves, and, therefore, the appellants were
\nnot eligible to the benefit of SSI Notification No.1\/93-CE
\ndated 28.2.1993 as amended by Notification No.59\/94-
\nCE dated 1.3.1994.  The above show cause notices were
\nissued by the Department demanding differential duty for
\nthe period April 1994 to June 1994 amounting to
\nRs.3,74,948\/- plus short paid duty for the period April
\n1995 to May 1995 amounting to Rs.92,992.  The said
\ndemand was based on an agreement detected by the
\nDepartment.  That Agreement was between Madan
\nVerma, Director of a company known as M\/s. Kay Aar
\nBiscuits (P) Ltd., Ghaziabad, and M\/s. Rich Food
\nProducts (P) Ltd., Noida.  Under the said Agreement M\/s.
\nKay Aar Biscuits (P) Ltd. was Party No.1.  Under the
\nAgreement it was declared that M\/s. Kay Aar Biscuits (P)
\nLtd.  was the owner of the registered trade mark
\n“Meghraj”.  Under the Agreement it was stated that M\/s.
\nKay Aar Biscuits (P) Ltd.  was using the aforestated trade
\nmark “Meghraj” for the manufacture of biscuits.  Under
\nthe Agreement there was a recital under which it was
\nstated that M\/s. Rich Food Products (P) Ltd. had put up
\na Unit for manufacture of wafers in Noida which it sought
\nto manufacture under the brand name “Meghraj”.  Under
\nthe said Agreement M\/s. Kay Aar Biscuits (P) Ltd. gave
\npermission to M\/s. Rich Food Products Pvt. Ltd. to use
\nits trade mark for the manufacture of wafers alone.  The
\nsaid agreement was valid for three years commencing
\nfrom 22.11.1989.  At this stage, it may be noted that the
\nappellants herein claim to have started manufacture of
\nbiscuits in 1991.  The biscuits were sold in wrapper
\nmentioning the name of the appellants, “M\/s. Meghraj
\nBiscuits Industries Ltd.” or “Meghraj”.  The Appellants
\nclaimed that it has been using the wrapper since
\nbeginning and since 1991 the use of the trade name or
\nbrand name “Meghraj” has never been challenged.  The
\nAssistant Commissioner, Ghaziabad, examined the
\nprinted wrappers.  He came to the conclusion vide his
\norders that the trade name “Meghraj” was in the form of
\na logo printed on the wrapper of the biscuits and,
\ntherefore, the appellants were not entitled to the benefit
\nof Notification No.1\/93-CE dated 28.2.93 as amended by
\nNotification No.59\/94 dated 1.3.94.  Consequently, the
\nAdjudicating Authority called upon the appellants to pay
\ndifferential duty for the period April 1994 to June 1994
\namounting to Rs.3,74,948 plus short paid duty for the
\nperiod April 1995 to May 1995 amounting to Rs.92,992.\n<\/p>\n
Aggrieved by the decision of the Adjudicating
\nAuthority, the assessee preferred appeals to the
\nCommissioner (A).  The said appeals were rejected on the
\nground that the appellants were using the brand name
\n“Meghraj” of another manufacturer M\/s. Kay Aar Biscuits
\n(P) Ltd. on their products (biscuits) and, therefore, they
\nwere not entitled to the benefit of exemption under
\nNotification No.1\/93-CE, as amended.  It was held that
\nthe word “Meghraj” was printed on all the printed
\nwrappers and, therefore, it was wrong to say that the
\nappellants were not using the brand name “Meghraj” on
\nits products.  In this connection, reliance was placed by
\nthe Commissioner (A) on the said Agreement dated
\n22.11.89.  Before the Commissioner (A) the appellants
\nherein contended that they had used the name “M\/s.
\nMeghraj Biscuits Industries Ltd.” on the wrapper and not
\non the product and, therefore, they were entitled to
\nexemption.  This argument was rejected by the
\nCommissioner (A) saying that the appellants were using
\nthe brand name “Meghraj” on their products.  According
\nto the Commissioner (A), the appellants used the trade
\nname “Meghraj” in the form of a logo which was printed
\non the wrapper.  Before the Commissioner (A), it was
\nargued in the alternative that the logo belonged to M\/s.
\nKay Aar Biscuits (P) Ltd.; that the same was registered
\nSSI Unit; that M\/s. Kay Aar Biscuits (P) Ltd. was lying
\nclosed since 1.3.93 and, therefore, the appellants have
\nbeen using that logo of M\/s. Kay Aar Biscuits (P) Ltd.
\nwho was eligible for exemption under Notification
\nNo.1\/93-CE, as amended.  This contention was rejected
\nby the Commissioner (A) on the ground that under the
\nNotification No.1\/93-CE, as amended, exemption was not
\navailable to the specified goods bearing brand name or
\ntrade name (registered or not) of another person.  Since,
\nthe appellants herein had used the trade name “Meghraj”
\non their products which trade name was owned by M\/s.
\nKay Aar Biscuits (P) Ltd. the appellants were not entitled
\nto the benefit of exemption under Notification No.1\/93-
\nCE, as amended.  Accordingly, the Commissioner (A)
\ndismissed the appeals.  The orders of the Commissioner
\n(A) have been confirmed by Order dated 11.4.2000
\npassed by CEGAT. Hence, these civil appeals.\n<\/p>\n
To complete the chronology of events, it may be
\npointed out that after the impugned decision of the
\nTribunal dated 11.4.2000, the appellants herein moved
\nan Application for Rectification on 12.5.2000 (ROM
\nNo.72\/2000).  In that application it was urged on behalf
\nof the appellants herein that the said brand name
\n“Meghraj” did not belong to M\/s. Kay Aar Biscuits (P)
\nLtd.; that the Department has failed to discharge its
\nburden to prove that the trade name “Meghraj” belonged
\nto M\/s. Kay Aar Biscuits (P) Ltd.; that a mere Agreement
\nbetween M\/s. Kay Aar Biscuits (P) Ltd. and M\/s. Rich
\nFood Products (P) Ltd. would not be sufficient to prove
\nthat M\/s. Kay Aar Biscuits (P) Ltd. was the lawful owner
\nof the brand name “Meghraj”.  In the Rectification
\nApplication it was further pointed out that in fact the
\nappellants had applied for ownership of the brand name
\n“Meghraj” vide application dated 30.9.91 to the Registrar,
\nTrade Marks under the Trade Marks Act and that the
\nsaid application for registration was pending before the
\ncompetent authority and since the above arguments were
\nnot recorded in the impugned Order of the CEGAT dated
\n11.4.2000 the same warranted rectification.\n<\/p>\n
By Order dated 8.12.2000, CEGAT rejected the
\nabove Rectification Application made by the Appellants.\n<\/p>\n
One more fact needs to be mentioned that on
\n30.6.2000 the Registrar of Trade Marks appears to have
\nissued Registration Certificate on 30.6.2000 registering
\nthe trade mark “Meghraj” in favour of the appellants with
\neffect form 30.9.91.  It appears that issuance of this
\ncertificate was mentioned before the CEGAT which
\nrejected the Rectification Application on 8.12.2000.\n<\/p>\n
Notification No.1\/93-CE dated 28.2.93 was issued
\nto help the SSI Units to survive in the market dominated
\nby brand name\/trade name.  The object of the
\nNotification, therefore, was to help the SSI Units and
\nthereby increased industrial production.  Under para ‘4’
\nof the said Notification, the benefit of exemption was not
\navailable for excisable goods bearing brand name or trade
\nname (registered or not) of another person.  Explanation
\nIX defined the word “brand name” or “trade name”.  The
\nsame is quoted hereinbelow:\n<\/p>\n
“Explanation IX  “Brand name” or
\n“trade name” shall mean a brand name or
\ntrade name, whether registered or not,
\nthat is to say a name or a mark, such as
\nsymbol, monogram, label, signature or
\ninvented word or writing which is used in
\nrelation to such specified goods for the
\npurpose of indicating, or so as to indicate
\na connection in the course of trade
\nbetween such specified goods and some
\nperson using such name or mark with or
\nwithout any indication of the identity of
\nthat person.”\n<\/p>\n
Notification No.1\/93-CE dated 28.2.1993 was
\nsubsequently amended by Notification No.59\/94 dated
\n1.3.94.  Para ‘7’ of Notification No.1\/93-CE as amended
\nread as under:\n<\/p>\n
“Para-7 The exemption contained in this
\nNotification shall not apply to the specified
\ngoods where a manufacturer affixes the
\nspecified goods with a brand name or trade
\nname (registered or not) of another person,
\nwho is not eligible for the grant of exemption
\nunder this Notification.”\n<\/p>\n
In the present case, as stated above M\/s. Kay Aar
\nBiscuits (P) Ltd entered into an agreement on 22.11.89
\nwith M\/s. Rich Food Products (P) Ltd.  Under that
\nAgreement the Director of M\/s. Kay Aar Biscuits (P) Ltd.
\ndeclared that his company was the owner of the
\nregistered trade mark “Meghraj”.  The name of that
\nDirector is Madan Verma.  He is the Director of the
\nappellants (company) also.  Further there is no evidence
\nto show as to whether M\/s. Kay Aar Biscuits (P) Ltd. was
\nan “eligible manufacturer”.  This aspect is important
\nsince one of the arguments advanced by the appellants
\nherein before the Commissioner (A) was that the trade
\nmark belonged to M\/s. Kay Aar Biscuits (P) Ltd., which
\nwas registered SSI Unit lying closed since 1.3.1993.  No
\nexplanation has been given as to why Madan Verma has
\nnot been examined by the appellants.  He has not been
\nexamined even on the question of alleged transfer of the
\ntrade mark in favour of the appellants.  In the
\ncircumstances, we do not find any merit in this appeal.\n<\/p>\n
On behalf of the appellants it has been vehemently
\nargued that M\/s. Kay Aar Biscuits (P) Ltd. was never the
\nregistered owner of the trade mark “Meghraj”.  It was
\nurged that merely because an Agreement stood entered
\ninto on 22.11.89 between M\/s. Kay Aar Biscuits (P) Ltd.
\nand M\/s. Rich Food Products (P) Ltd., the Department
\nhad erred in alleging that the trade mark belonged to
\nM\/s. Kay Aar Biscuits (P) Ltd.  It was urged that M\/s.
\nKay Aar Biscuits (P) Ltd. had never got the trade mark
\nregistered under the Trade Marks Act.  It was urged that
\na false declaration was made by M\/s. Kay Aar Biscuits (P)
\nLtd. under the above Agreement on 22.11.89.  It was
\nurged that a mere agreement between two parties cannot
\nconstitute ownership of the trade mark in favour of M\/s.
\nKay Aar Biscuits (P) Ltd.  It was urged that in any event
\nM\/s. Kay Aar Biscuits (P) Ltd. had stopped its production
\nin 1993; that the company had become defunct; that the
\nappellants herein had applied to the Registrar of Trade
\nMarks for registration of the mark “Meghraj” and vide
\nregistration certificate dated 30.6.2000 the Registrar has
\nrecognized the appellants as owner of the trade mark
\nwith effect from 30.9.91.  In the circumstances, the
\nappellants submitted that the demand for differential
\nduty was unwarranted.\n<\/p>\n
We do not find any merit in the above arguments.
\nIn the case of Pahwa Chemicals Pvt. Ltd. v.
\nCommissioner of Central Excise, Delhi<\/a>  2005 (189)
\nELT 257 (SC) this Court has held that the object of the
\nexemption Notification was neither to protect the owners
\nof the trade mark nor the consumers from being misled.
\nThese are considerations which are relevant in disputes
\narising out of infringement\/passing of actions under the
\nTrade Marks Act.  The object of the Notification is to
\ngrant benefits only to those industries which otherwise
\ndo not have the advantage of a brand name [See: para
\n‘3’].\n<\/p>\n
Applying the ratio of the above judgment to the
\npresent case, it is clear that grant of registration
\ncertificate under the Trade Marks Act will not
\nautomatically provide benefit of exemption to the SSI
\nUnit.\n<\/p>\n
In the case of Commissioner of Central Excise,
\nChandigarh v. Bhalla Enterprises  2004 (173) ELT
\n225 (SC), this Court held that the assessee will not be
\nentitled to the benefit of exemption if it uses on goods in
\nquestion, same\/similar brand name with intention of
\nindicating a connection with the goods of the assessee
\nand such other person or uses the name in such manner
\nthat it would indicate such connection.  It was further
\nheld that the burden is on the assessee to satisfy the
\nAdjudicating Authority that there was no such intention
\n[See: paras 6 and 7].\n<\/p>\n
Applying the above test to the facts of the present
\ncase, Madan Verma is a common Director in the two
\ncompanies.  He has filed an affidavit enclosing the
\nregistration certificate dated 30.6.2000.  However, in that
\nAffidavit he has not stated as to on what basis, in the
\nAgreement of 23.11.89 signed by him, he had declared
\nthat M\/s. Kay Aar Biscuits (P) Ltd. is the owner of the
\nregistered trade mark “Meghraj”.  There is no deed of
\nassignment from M\/s. Kay Aar Biscuits (P) Ltd. in favour
\nof the appellants herein.  The Department has rightly
\nplaced reliance on the Agreement of 23.11.89.  In the
\ncircumstances, the burden was on the assessee
\n(appellants herein) to satisfy the Adjudicating Authority
\nthat there was no intention of indicating a connection
\nwith the goods of the assessee and such other person.\n<\/p>\n
Before us it has been urged that M\/s. Kay Aar
\nBiscuits (P) Ltd. is non-functional since 1.3.93 and,
\ntherefore, in any event appellants were entitled to use the
\ntrade mark “Meghraj”.  This argument is based on the
\nconcept of abandonment.  We do not find any merit in
\nthis argument.  Discontinuation of business in respect of
\na product does not necessarily amount to abandonment.
\nIn the present case, there is no evidence from the side of
\nthe appellants indicating abandonment of the trade mark
\nby M\/s. Kay Aar Biscuits (P) Ltd.  Although, Madan
\nVerma, the Director of M\/s. Kay Aar Biscuits (P) Ltd., has
\nfiled his Affidavit enclosing the registration certificate, he
\nhas nowhere stated that M\/s. Kay Aar Biscuits (P) Ltd.
\nhas abandoned the trade mark.  In the circumstances,
\nthe Department was right in rejecting the above
\ncontention.  Abandonment of the trade mark has to be
\nproved by the appellants in the present case.  The burden
\nis on the appellants, particularly, when the Department
\nis relying upon the agreement dated 23.11.89 between
\nM\/s. Kay Aar Biscuits (P) Ltd. and M\/s. Rich Food
\nProducts (P) Ltd.\n<\/p>\n
Lastly, we are required to examine the retrospective
\neffect of the registration certificate dated 30.6.2000 with
\neffect from 30.9.91.  At the outset, we may reiterate that
\nthe object of the exemption Notification was neither to
\nprotect the owners of the trade mark nor the consumers
\nfrom being misled.  These are considerations which are
\nrelevant in disputes arising under the Trade Marks Act.
\nThe object of the exemption Notification No.1\/93-CE was
\nto grant benefits to those industries which do not have
\nthe advantage of a brand name.  However, since
\nretrospective nature of the registration certificate dated
\n30.6.2000 is repeatedly being raised in this Court we
\nwould like to examine the case law in this regard.\n<\/p>\n
The Trade Marks Act, 1999 has been enacted to
\namend and consolidate the law relating to trade marks,
\nto provide for registration and better protection of trade
\nmarks and for prevention of the use of fraudulent marks.
\nUnder Section 28 of the Trade Marks Act, 1999,
\nregistration gives to the registered proprietor of the trade
\nmark the exclusive right to the use of the trade mark in
\nrelation to the goods in respect of which the trade mark
\nis registered and to obtain relief in respect of
\ninfringement of the trade mark in the manner provided
\nby the Trade Marks Act.  It is correct to say that the
\nRegistrar, Trade Marks, can issue registration certificate
\nunder Section 28 of the Trade Marks Act with
\nretrospective effect.  The question before us is : what is
\nthe effect of issuance of registration certificate with
\nretrospective effect.  This question has been decided by
\nthe Bombay High Court in the case of Sunder
\nParmanand Lalwani and Others v. Caltex (India) Ltd.
\nAIR 1969 Bombay 24 in which it has been held vide
\nparas ’32’ and ’38’ as follows:\n<\/p>\n
“32. A proprietary right in a mark can be
\nobtained in a number of ways. The mark can
\nbe originated by a person, or it can be
\nsubsequently acquired by him from somebody
\nelse. Our Trade Marks law is based on the
\nEnglish Trade Marks law and the English Acts.
\nThe first Trade Marks Act in England was
\npassed in 1875. Even prior thereto, it was
\nfirmly established in England that a trader
\nacquired a right of property in a distinctive
\nmark merely by using it upon or in connection
\nwith goods irrespective of the length of such
\nuser and the extent of his trade, and that he
\nwas entitled to protect such right of property
\nby appropriate proceedings by way of
\ninjunction in a Court of law. Then came the
\nEnglish Trade Marks Act of 1875, which was
\nsubstituted later by later Acts. The English
\nActs enabled registration of a new mark not till
\nthen used with the like consequences which a
\ndistinctive mark had prior to the passing of the
\nActs. The effect of the relevant provision of the
\nEnglish Acts was that registration of a trade
\nmark would be deemed to be equivalent to
\npublic user of such mark. Prior to the Acts,
\none could become a proprietor of a trade mark
\nonly by user, but after the passing of the Act of
\n1875, one could become a proprietor either by
\nuser or by registering the mark even prior to
\nits user. He could do the latter after complying
\nwith the other requirements of the Act,
\nincluding the filing of a declaration of his
\nintention to use such mark. See observations
\nof Llyod Jacob J. in 1956 RPC 1. In the matter
\nof Vitamins Ltd’s Application for Trade Mark at
\np.12, and particularly the following:
\n“A proprietary right in a mark
\nsought to be registered can be
\nobtained in a number of ways. The
\nmark can be originated by a person
\nor can be acquired, but in all cases
\nit is necessary that the person
\nputting forward the application
\nshould be in possession of some
\nproprietary right which, if
\nquestioned, can be substantiated”.
\nLaw in India under our present Act is similar.\n<\/p>\n
38. A person may become a proprietor of a
\ntrade mark in diverse ways. The particular
\nmode of acquisition of proprietorship relied
\nupon by the applicant in this case is of his
\nuser for the first time in India in connection
\nwith watches and allied goods mentioned by
\nhim of the mark “Caltex”, which at the material
\ntime was a foreign mark belonging to
\nDegoumois & Co. of Switzerland and used by
\nthem in respect of watches in Switzerland.
\nBefore the Deputy Registrar and before Mr.
\nJustice Shah, proprietorship was claimed on
\nthe basis that the applicant was entitled to it
\nas an importer’s mark. Several authorities
\nwere cited and were considered and principles
\ndeduced and relied upon in that behalf. In our
\nopinion, it is not necessary in this case to go
\ninto details about facts in the various decided
\ncases dealing with importer’s marks. In many
\nof those cases, the dispute was between a
\nforeign trader using a foreign mark in a foreign
\ncountry on goods which were subsequently
\nimported by Indian importers and sold by
\nthem in this country under that very mark. In
\nshort it was a competition between a foreign
\ntrader and the Indian importer for the
\nproprietorship of that mark in this country. We
\nhave already reached a conclusion that so far
\nas this country is concerned, Degoumois & Co.
\nhave totally disclaimed any interest in the
\nproprietorship of that mark for watches etc. In
\nIndia, the mark “Caltex” was a totally new
\nmark for watches and allied goods. The
\napplicant was the originator of that mark so
\nfar as that class of goods is concerned, and so
\nfar as this country is concerned. He in fact
\nused it in respect of watches. There is no
\nevidence that that mark was used by anyone
\nelse in this country before the applicant, in
\nconnection with that class of goods.
\nUnquestionably, the applicant’s user was not
\nlarge, but that fact makes no difference,
\nbecause so far as this country is concerned,
\nthe mark was a new mark in respect of the
\nclass of goods in respect of which the applicant
\nused it. We therefore, hold that the applicant is
\nthe proprietor of that mark.”\n<\/p>\n
[emphasis supplied]      <\/p>\n
\tOn reading the above quoted paragraphs from the
\nabove judgment, with which we agree, it is clear that the
\neffect of making the registration certificate applicable
\nfrom retrospective date is based on the principle of
\ndeemed equivalence to public user of such mark.  This
\ndeeming fiction cannot be extended to the Excise Law.  It
\nis confined to the provisions of the Trade Marks Act.  In a
\ngiven case like the present case where there is evidence
\nwith the Department of the trade mark being owned by
\nM\/s. Kay Aar Biscuits (P) Ltd. and where there is
\nevidence of the appellants trading on the reputation of
\nM\/s. Kay Aar Biscuits (P) Ltd. which is not rebutted by
\nthe appellants (assessee), issuance of registration
\ncertificate with retrospective effect cannot confer the
\nbenefit of exemption Notification to the assessee.  In the
\npresent case, issuance of registration certificate with
\nretrospective effect from 30.9.91 will not tantamount to
\nconferment of exemption benefit under the Excise Law
\nonce it is found that the appellants had wrongly used the
\ntrade mark of M\/s. Kay Aar Biscuits (P) Ltd.\n<\/p>\n
\tIn the case of Consolidated Foods Corporation v.
\nBrandon and Co., Pvt. Ltd.  AIR 1965 Bombay 35, it
\nhas been held vide paras ’27’ and ’30’ that the Trade
\nMarks Act merely facilitates the mode of proof.  Instead of
\ncompelling the holder of a trade mark in every case to
\nprove his proprietary right, the Act provides a procedure
\nwhereby on registration the owner gets certain facilities
\nin the mode of proving his title.  We quote hereinbelow
\nparas ’27’ and ’30’ of the said judgment which read as
\nfollows:\n<\/p>\n
“(27) At any rate, it must be remembered that
\nin this case I am not dealing with a passing-off
\naction or an action for infringement of a trade
\nmark which is alleged to be common property.
\nThe case put up by the petitioner corporation
\nthat it was the first to use the mark “Monarch”
\nin this country on its food products and that,
\nin as much as the mark “Monarch” was
\nadmittedly a distinctive mark, it had acquired
\nthe right to get the mark registered in its name
\nand also the right to oppose the application of
\nany other trader in this country seeking to get
\nthat mark registered in his name in respect of
\nthe food products manufactured or sold by
\nhim. Apparently, in such a case there is no
\nquestion of infringement of any right of
\nproperty in a trade mark for which any relief is
\nsought, nor is there any question of passing-
\noff, so that it might be necessary to enter into
\nquestions of nicety as regards whether there
\ncould or could not be any property in a trade
\nmark. As already stated by me while referring
\nto the observations of Sir John Romily, it is not
\nreally necessary for me to decide in this case
\nas to whether there could or could not be any
\nproperty in a trade mark for the purpose of
\ndeciding this case. Even if it is found to be
\nnecessary to decide this question as to
\nproperty in a trade mark, I have already
\npointed out that the Courts of Equity in
\nEngland granted relief in cases of infringement
\nof trade marks on the basis of infringement of
\nthe right of property in the trade mark. There
\nwas no other basis on which those Courts
\ncould give any relief to the plaintiffs in such
\ncases and for the purpose of such relief the
\nCourts of Equity did not require the plaintiff to
\nprove that his mark by any length of user was
\nassociated in the minds of the public with his
\ngoods. All that was necessary for the plaintiff
\nto prove was that he had used that mark in
\nrespect of his particular type of goods. That
\nwas enough in the eyes of the Courts of Equity
\nto entitle him to a relief by way of an
\ninjunction in case of an infringement of his
\nmark by some other trader. I have also pointed
\nout that the statute which came to be enacted
\nin England in 1875 and the subsequent
\nstatutes did nothing more than to embody the
\nrights in relation to trade marks which were
\nalready laid down by the Courts of Equity. As a
\nmatter of fact, the statute enabled a person to
\nhave registered a mark not only which he had
\nbeen using but also a mark which he proposed
\nto use. The latter type of mark would evidently
\nrefer to a distinctive mark, a mark which does
\nnot directly describe the nature or quality of
\nthe goods to which it is attached. In cases of
\nsuch marks, whereas the Courts of Equity did
\nrequire some slight user before the proprietor
\nthereof could institute an action for
\ninfringement thereof, the statute enabled the
\nregistration of such mark without any user at
\nall, because such mark being distinctive per se
\nit was not necessary for the person applying
\nfor its registration to show that mark had
\nacquired a reputation in the market, so that it
\ncould be associated only with his goods and of
\nnobody else. Even so far as this country is
\nconcerned, the Trade Marks Act of 1940 does
\nnot seem to have made any change in the legal
\nrights of the owner of a trade mark as
\nestablished by the Courts of Chancery in
\nEngland. In In re Century Spinning and
\nManufacturing Co. Ltd., 49 Bom LR 52 : (AIR
\n1947 Bom 445), Chagla, J. (as he then was)
\nobserved in this connection (at page 59 of Bom
\nLR : ( at p. 449 of AIR)) as follows :\n<\/p>\n
“The question is whether in India
\nthe Trade Marks Act of 1940 has
\nmade any change in the legal rights
\nof the owner of a trade mark. To my
\nmind it is clear that even prior to
\nthe passing of this Act the owner of
\na trade mark could maintain an
\naction for the infringement of a
\ntrade mark and that action could
\nonly be maintained on the
\nassumption that he was the owner
\nof the trade mark and he had a
\nproprietary right in the trade mark.
\nSub-clause (I) of Section 20 of the
\nTrade Marks Act itself assumes and
\nimplies that such a right existed in
\nthe owner of a trade mark because it
\nsays that the unregistered holder of
\na trade mark can maintain a suit for
\nthe infringement of a trade mark
\nprovided that the trade mark was in
\nuse before February 25, 1937, and
\nan application for registration had
\nbeen made and refused.”\n<\/p>\n
As regards the question whether there could
\nbe any property in a trade mark, the learned
\nJudge further observed (on the same page) as
\nfollows:\n<\/p>\n
“Again, turning to S. 54 of the
\nSpecific Relief Act, which deals with
\ncases when a perpetual injunction
\nmay be granted the Explanation to
\nthat section lays down that for the
\npurpose of that section a trade mark
\nis property. Therefore, if a person
\ninvaded or threatened to invade the
\nother’s right to, or enjoyment of,
\nproperty, the Court under Section
\n54 had the discretion to grant a
\nperpetual injunction, and trade
\nmark was as much property for the
\npurpose of S. 54 as any other kind
\nof property.\n<\/p>\n
I, therefore, agree with the learned
\nAdvocate General that all that the
\nTrade Marks Act has done is to
\nfacilitate the mode of proof. Instead
\nof compelling the holder of a trade
\nmark in every case to prove his
\nproprietary right before he could ask
\nthe Court to grant him an
\ninjunction, the Trade Marks Act
\nprovides a procedure whereby by
\nregistering his trade mark the owner
\ngets certain facilities in the mode of
\nproving his title. For instance, under
\nS.23 of the Trade Marks Act
\nregistration is to be prima facie
\nevidence of the validity of the trade
\nmark.”\n<\/p>\n
This was precisely the view which was
\nexpressed by Lord Justice Romer in (1905) I
\nKB 592 to which I have already referred in the
\nearlier part of the judgment. To summarise,
\ntherefore, a trader acquires a right of property
\nin a distinctive mark merely by using it upon
\nor in connection with his goods irrespective of
\nthe length of such user and the extent of his
\ntrade. The trader who adopts such a mark is
\nentitled to protection directly the article having
\nassumed a vendible character is launched
\nupon the market. As between two competitors
\nwho are each desirous of adopting such a
\nmark, “it is, to use familiar language, entirely a
\nquestion of who gets there first.” Gaw Kan Lye
\nv. Saw Kyone Saing, AIR 1939 Rang 343 (FB).
\nRegistration under the statute does not confer
\nany new right to the mark claimed or any
\ngreater right than what already existed at
\ncommon law and at equity without
\nregistration. It does, however, facilitate a
\nremedy which may be enforced and obtained
\nthroughout the State and it established the
\nrecord of facts affecting the right to the mark.
\nRegistration itself does not create a trade
\nmark. The trade mark exists independently of
\nthe registration which merely affords further
\nprotection under the statute. Common law
\nrights are left wholly unaffected. Priority in
\nadoption and use of a trade mark is superior
\nto priority in registration.”\n<\/p>\n
(30) It was next contended by Mr. Shavaksha
\nthat the respondent company had itself shown
\nKipre and Co. Private Ltd., as the proprietors
\nof the mark on the labels bearing the mark
\n“Monarch” on the different kinds of its food
\nproducts and, therefore, the respondent
\ncompany had no right to apply for registration
\nin its favours as if it was the proprietor thereof.
\nIt was conceded by Mr. Shah that the labels
\nwhich were used on the food products
\nmanufactured by Kipre and Co. Private Ltd,
\ndid bear the name of Kipre and Co. Private Ltd.
\nimmediately below the mark “Monarch” and
\nthat the respondent company’s name was
\nprinted below it as sole distributors. Mr. Shah,
\nhowever, contended that by an agreement Ex.
\nF. made between the respondent company and
\nKipre and Co. Private Ltd. in 1951 it was
\nclearly provided that the mark “Monarch”
\nbelonged to the respondent company, that
\nKipre and Co. Private Ltd. were only to
\nmanufacture the food products as ordered by
\nthe respondent company and that the food
\nproducts so manufactured were to be bottled
\nand packed by them for its use and benefit
\nand that, therefore, in spite of Kipre and Co.’s
\nname appearing on the labels, the respondent
\ncompany was the true proprietor of the mark
\n“Monarch” and that, therefore, it was entitled
\nto apply for its registration as proprietor
\nthereof. Now, once again turning to the
\nprovisions of section 18 sub-section (I), it is
\nclear that only a person claiming to be the
\nproprietor of a trade mark used by him or
\nproposed to be used by him could make an
\napplication to the Registrar for the registration
\nthereof. According to this provision, not only a
\nperson should claim to be the proprietor of a
\ntrade mark but he should prove that he had
\nused it as such proprietor on his goods. Then
\nturning to the label as it stood at the date of
\nthe application, two names appeared on the
\nlabel, one of Kipre and Co. and the other of the
\nrespondent company. If these two names had
\nstood by themselves without any further
\ndescription of either of them, it could be said
\nthat both Kipre and Co. and the respondent
\ncompany were jointly the owners of the mark
\nas well as the owners of the goods to which the
\nlabel was affixed. But, that is not the case. The
\nrespondent company is described as the sole
\ndistributors on the label. The reasonable
\ninference that could be drawn from this
\ndescription surely is that the goods were the
\nproperty of Kipre and Co. and so also the
\nmark. If the respondent company was really
\nthe proprietor of the mark and also the owner
\nof the goods one would expect some such
\nwords as “Manufactured by Kipre and Co. for
\nBrandon and Co., Private Ltd.” In the absence
\nof any such words, a person buying any of
\nthese goods on reading the label would
\nnaturally believe that what he was buying was
\nthe property of Kipre and Co. which was selling
\nits goods under the mark “Monarch”. It is true,
\nas contended by Mr. Shah, that even
\ndistributors and sellers may have marks of
\ntheir own, but then, there are ways and ways
\nof indicating on the label itself that the mark
\nembodied therein is the mark belonging to
\nsuch distributor or seller. Obviously, therefore,
\non the label as it stood, it could not be said
\nthat the respondent company was the
\nproprietor of the mark “Monarch” nor could it
\nbe said that the mark was used by the
\nrespondent company as proprietor thereof.”
\n(emphasis supplied)
\nApplying the principle of deemed equivalence we
\nmay clarify that if the SSI unit wrongly affixes a trade
\nmark of another person, be it registered or not, or if it
\nuses the trade mark of an ineligible person then such
\ndefault would not be eliminated by the above principle of
\ndeemed equivalence embodied in Section 28 of the
\nTrade Marks Act, 1999 as that principle is based on a
\ndeeming fiction which fiction is confined only to the
\nprovisions of the Trade Marks Act.\n<\/p>\n
Before concluding we may refer to the Judgment of
\nthis Court in the case of Commissioner of Central
\nExcise, Mumbai v. Bigen Industries Ltd.  2006 (197)
\nELT 305.  In that matter a show cause notice was issued
\ncalling upon the assessee to show cause why the
\nexemption be not denied to the assessee.  In para ’19’ of
\nthe show cause notice the authority accepted the
\nexistence of a deed of assignment.  However, the show
\ncause notice denied the exemption on the ground that
\nNotification No.140\/83-CE did not make any distinction
\nbetween a brand name owned by a person in India or
\nabroad.  In the present case, the facts are entirely
\ndifferent.  In the present case, there is no deed or
\nassignment from M\/s. Kay Aar Biscuits (P) Ltd. to the
\nM\/s. Meghraj Biscuits Industries Ltd. (appellants herein).
\nAs stated above, there is no proof of acquisition on
\npayment or consideration by the appellants to M\/s Kay
\nAar Biscuits (P) Ltd.  In the present case, there is no
\nevidence of assignment or licence from M\/s. Kay Aar
\nBiscuits (P) ltd. to the appellants.  In the present case, we
\nare concerned with the retrospective effect of the
\ncertificate issued by the Registrar of Trade Marks on
\n30.6.2000 with effect from 30.9.91.  In the
\ncircumstances, the judgment of this Court in the case of
\nBigen Industries (Supra) has no application.\n<\/p>\n
For the aforestated reasons, we do not find any
\nmerit in these civil appeals.  Before concluding we may
\npoint out that we do not wish to express any opinion on
\nthe subsequent events which have taken place in this
\ncase.  Our judgment is confined only to the period in
\nquestion under the impugned show cause notices.\n<\/p>\n
Accordingly, the civil appeals stand dismissed with
\nno order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M\/S. Meghraj Biscuits Industries … vs Commissioner Of Central … on 14 March, 2007 Author: Kapadia Bench: S.H. Kapadia, B. Sudershan Reddy CASE NO.: Appeal (civil) 8739-8741 of 2001 PETITIONER: M\/s. Meghraj Biscuits Industries Ltd RESPONDENT: Commissioner of Central Excise,U.P. DATE OF JUDGMENT: 14\/03\/2007 BENCH: S.H. KAPADIA & B. SUDERSHAN REDDY […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-230830","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM\/S. 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