Govt. of A.P. and ors. Vs. Kolla Raghavaiah and anr. - Court Judgment

Excerpt:
- limitation act, 1963.[c.a. no. 36/1963]. article 137: [s.b. sinha & lokeshwar singh panta, jj] trade mark- application for rectification of register- limitation held, article 137 of 1963 act does not apply since registrar is not court. plea that even otherwise 3 years should be taken as upper limit for rectification is not tenable. reasonableness of period depend not only on nature of action initiated but also on purport and object of statute. -- trade and merchandise marks act, 1958[c.a. no. 43/1958]. section 46; register of trade marks delay in making application for rectification held, court may refuse to rectify register. doctrine of continuing wrong has no application.-- section 46; register of trade marks rectification -ground deceptive similarity-tests to be applied to decide deception held, the tests which are required to be applied to decide question of deceptive similarity in trade marks in each case would be different. each word must be taken separately. they should be judged by their look and by their sound. must consider the goods to which they are to be applied. nature and kind of customers who would likely to buy goods must also be considered. surrounding circumstances play an important factor. what would likely to happen if each of those trade marks is used in a normal way as a trade mark of the goods of the respective owners of the marks would also be a relevant factor. where the class of buyers is quite educated and rich., the test to be applied is different from the one where the product would be purchased by the villagers, illiterate and poor. ordinarily, again they like tobacco, would purchase alcoholic beverages by their brand name. when, however, the product is to be purchased both by villagers and town people, the test of a prudent man would necessary be applied. it may be true that the tests which are to be applied in a country like india may be different from the tests either in a country of england, united states of america or australia. thus, where rectification of trade name peter scot registered by an indian manufacturer of whisky was sought on the ground that the use of words scot may cause deception in the mind of purchasers that the whisky is of scottish origin, considering the class of people who buy scotch whisky the application was liable to be dismissed. the buyers are supposed to know the value of money, the quality and content of scotch whisky. they are supposed to be aware of the difference of the process of manufacture, the place of manufacture and their origin. section 56; trade mark- application for rectification of register- limitation held, article 137 of 1963 act does not apply since registrar is not court. plea that even otherwise 3 years should be taken as upper limit for rectification is not tenable. reasonableness of period depend not only on nature of action initiated but also on purport and object of statute. -- section 56; register of trade marks application for rectification delay condonation of held, the power of the registrar in terms of section 56 is wide. sub-section (2) of section 56 use the word may at two places. it enables a person aggrieved to file an application. it enable the tribunal to it make such order a s it may think it. it may not, therefore, be correct to contend that under no circumstances the delay or acquiescence or waiver or any other principle analogous thereto would apply. purity of register as also the public interest would indisputably be relevant consideration. but, when a discretionary jurisdiction has been conferred on a statutory authority, the same although would be required to be considered on objective criteria but as a legal principle it cannot be said that the delay leading to acquiescence or waiver or abandonment will have no role to play. -- section 56; register of trade marks -rectification delay respondent-applicant taking action against every party throughout world using trade mark evocating scotland no action, however, taken against appellant for years even though a notice was issued - explanation that they waited for decision of supreme court on same issue held, since action was initiated even before decision of supreme court, application is liable to be dismissed on principles of acquiescence, waiver. -- section 46; register of trade marks rectification -ground deceptive similarity-tests to be applied to decide deception held, the tests which are required to be applied to decide question of deceptive similarity in trade marks in each case would be different. each word must be taken separately. they should be judged by their look and by their sound. must consider the goods to which they are to be applied. nature and kind of customers who would likely to buy goods must also be considered. surrounding circumstances play an important factor. what would likely to happen if each of those trade marks is used in a normal way as a trade mark of the goods of the respective owners of the marks would also be a relevant factor. where the class of buyers is quite educated and rich., the test to be applied is different from the one where the product would be purchased by the villagers, illiterate and poor. ordinarily, again they like tobacco, would purchase alcoholic beverages by their brand name. when, however, the product is to be purchased both by villagers and town people, the test of a prudent man would necessary be applied. it may be true that the tests which are to be applied in a country like india may be different from the tests either in a country of england, united states of america or australia. thus, where rectification of trade name peter scot registered by an indian manufacturer of whisky was sought on the ground that the use of words scot may cause deception in the mind of purchasers that the whisky is of scottish origin, considering the class of people who buy scotch whisky the application was liable to be dismissed. the buyers are supposed to know the value of money, the quality and content of scotch whisky. they are supposed to be aware of the difference of the process of manufacture, the place of manufacture and their origin. -- section 56; trade mark- application for rectification of register- limitation held, article 137 of 1963 act does not apply since registrar is not court. plea that even otherwise 3 years should be taken as upper limit for rectification is not tenable. reasonableness of period depend not only on nature of action initiated but also on purport and object of statute. -- section 56; register of trade marks application for rectification delay condonation of held, the power of the registrar in terms of section 56 is wide. sub-section (2) of section 56 use the word may at two places. it enables a person aggrieved to file an application. it enable the tribunal to it make such order a s it may think it. it may not, therefore, be correct to contend that under no circumstances the delay or acquiescence or waiver or any other principle analogous thereto would apply. purity of register as also the public interest would indisputably be relevant consideration. but, when a discretionary jurisdiction has been conferred on a statutory authority, the same although would be required to be considered on objective criteria but as a legal principle it cannot be said that the delay leading to acquiescence or waiver or abandonment will have no role to play. -- section 56; register of trade marks -rectification delay respondent-applicant taking action against every party throughout world using trade mark evocating scotland no action, however, taken against appellant for years even though a notice was issued - explanation that they waited for decision of supreme court on same issue held, since action was initiated even before decision of supreme court, application is liable to be dismissed on principles of acquiescence, waiver. geographical indication of goods(registration and protection)act,1999[c.a.no.48/1999] -- sections 20(2) & 26(2): [s.b. sinha & lokeshwar singh panta,jj] protection to certain trade marks - rectification of trade mark register ground that trade mark registered creates confusion as to place of manufacture in minds of buyers as to take place of manufacture of product held, plea as to applicability of act is not tenable in view of sections 22 and 26 - we are satisfied that the view taken by the high court in declining to grant leave to the government of andhra pradesh was erroneous.orderv.n. khare and r.c. lahoti, jj.1. leave granted.2. the respondents filed a petition under article 226 of the constitution of india before the high court of andhra pradesh for regularisation of their services. in the said writ petition before the high court, the appellant nos. 2 and 3 were arrayed as respondents. the learned single judge of the high court allowed the writ petition and issued a direction to regularise the services of respondents herein. against the said judgment, state of andhra pradesh, the district collector, prakasam district and the divisional panchayat officers, prakasam district, sought leave of the high court to file writ appeal. the high court refused to accord leave to file an appeal on the ground that the respondents were not employees of the appellants. it is against the said judgment the appellants are in appeal before us.3. this court issued notice on november 25, 1999 limited to the question as to why the matter should not be remanded to the high court. we have heard counsel for parties. it is not disputed that appellants no. 2 and 3 were also appellants before the high court. it is only, the government of andhra pradesh who was not a party in the writ petition as the state government was not impleaded as respondent in the writ petition. it is also not disputed that panchayat is getting grant from the state government and, therefore, the government of andhra pradesh was also a necessary party. in view of the said fact, the government of andhra pradesh was a necessary party to the writ petition and was not impleaded as respondent in the writ petition. under such circumstances, the high court ought to have accorded leave to the government of andhra pradesh to file writ appeal. we are satisfied that the view taken by the high court in declining to grant leave to the government of andhra pradesh was erroneous. we, therefore, set aside the judgment under appeal and send the case back to the high court for deciding the 'appeal preferred by the appellants in accordance with law.4. the appeals are allowed. there shall be no order as to costs.

Judgment:
ORDER

V.N. Khare and R.C. Lahoti, JJ.

1. Leave granted.

2. The respondents filed a petition under Article 226 of the Constitution of India before the High Court of Andhra Pradesh for regularisation of their services. In the said writ petition before the High Court, the appellant Nos. 2 and 3 were arrayed as respondents. The learned single Judge of the High Court allowed the writ petition and issued a direction to regularise the services of respondents herein. Against the said judgment, State of Andhra Pradesh, the District Collector, Prakasam District and the Divisional Panchayat Officers, Prakasam District, sought leave of the High Court to file writ appeal. The High Court refused to accord leave to file an appeal on the ground that the respondents were not employees of the appellants. It is against the said judgment the appellants are in appeal before us.

3. This Court issued notice on November 25, 1999 limited to the question as to why the matter should not be remanded to the High Court. We have heard counsel for parties. It is not disputed that appellants No. 2 and 3 were also appellants before the High Court. It is only, the Government of Andhra Pradesh who was not a party in the writ petition as the State Government was not impleaded as respondent in the writ petition. It is also not disputed that Panchayat is getting grant from the State Government and, therefore, the Government of Andhra Pradesh was also a necessary party. In view of the said fact, the Government of Andhra Pradesh was a necessary party to the writ petition and was not impleaded as respondent in the writ petition. Under such circumstances, the High Court ought to have accorded leave to the Government of Andhra Pradesh to file writ appeal. We are satisfied that the view taken by the High Court in declining to grant leave to the Government of Andhra Pradesh was erroneous. We, therefore, set aside the judgment under appeal and send the case back to the High Court for deciding the 'appeal preferred by the appellants in accordance with law.

4. The appeals are allowed. There shall be no order as to costs.