Trade Marks Act, 1999

Sections 47 & 57

Rectification applications

It is the undisputed fact that the partnership firm has been using the trade mark MARDAN even after registration of MARDAN was removed from the register in 1991. The firm is therefore proprietor of the trade mark. In other words, the partners were co-proprietors or joint proprietors of the mark. The memorandum of understanding does not contain any whisper of goodwill, trade mark or dissolution of the partnership firm. Clause 6 of the memorandum of understanding reads thus: "6. That in the event of default in payment as mentioned in Cl.No. 5 the partnership under the name & style MARDAN INDUSTRIES will be deemed to have the same status as it was on 31-3-92 to be specific Mr. Harvinder Singh will retire from the firm on receipt of the said amount. Any liabilities contacted after 1-4-92 by Mardan Industries or Mardan Industries (India) will be reverted back to Mr. Jagmohan Singh." The respondents has stated in the affidavit evidence that the payment of Rs. 7.5 lacs and Rs. 5.77 lacs by the partners Shri Upkar Singh and Jagmohan Singh, respectively, have not been made to the third partner, Harvinder Singh. The averment of non-payment of the aforesaid amounts corroborates with a copy of notice dated 6.5. 1993 by Shri G.V.Dass, Advocate on behalf of the third partner issued to Shri Upkar Singh and Jagmohan Singh. If that be so, the partnership firm, in terms of clause 6, is in the same status as it was before the date of signing of memorandum of understanding and as such no taking over of running business of Mardan Industries occurred. The contesting parties have not furnished any information about the aforesaid payments, in terms of clause 5 of the memorandum of understanding, after service of the said notice on the defaulting partners. Further, the copies of Sales Tax Assessment orders placed on record also suggest that the firm was not dissolved at least till 1996. If the dissolution of the partnership has not taken place, the firm is the proprietor of the trade mark. When the firm is the proprietor of trade mark MARDAN due to non-dissolution thereof, the applicant could not have applied for registration of trade mark MARDAN and MARDAN NO. 1 in his name, i.e. in the name of Jagmohan Singh trading as Mardan Industrial Corporation. Likewise, Jagmohan Singh is not a person aggrieved as a partner cannot have a separate identical business in competition to the firm's business. However, this Appellate Board has no jurisdiction to interpret and determine whether the memorandum of understanding is acted upon or not, such jurisdiction lies with the Civil Court. During the course of hearing, the applicant furnished a paper detailing the dates and events that took place in the case, wherein it is noticed that the applicant has indicated two issues as disputed facts, namely, first, Whether the MOU was acted upon and second, Whether the Partnership Firm is presently subsisting. When the applicant was aware that the nature of issues involved are such which can be determined by the Civil Court, the present applications before this Appellate Board appears to be filed with mala fide intention to harass the respondents for which the respondents deserves to be compensated, howsoever, token amount it may be. [Para 20]