Trademark : One for all, all fight over one.

Petitioner: Mr. DarshanKumar

Respondent: Mr. Ranjit Kumar Sharma (Respondent 1) and The Registrar of Trademarks (Respondent 2)

Trademark: BAWA/BAWA FEED

Decision making Authority: IPAB

Facts:

The Petitioner Sri Darshan Kumar started a partnership firm along with Sri Ranjit Kumar Sharma (Respondent) and Sri Raj Kumar in the year 2004. In due course of the business the firm started using the mark BAWA/BAWA FEED for goods such as cattle feed, poultry feed and other allied goods. On 22^nd September the respondent filed for a trademark registration for BAWA/BAWA FEED under classes 31 and 35, claiming usage of the mark from 1^st April 2001. Both the applications had the address of the firm as address of service. Both the trademarks were registered under classes 31 and 35 on 16^th November 2005 and 18^th November 2005 respectively.

On 10^th march 2006, one of the partners Sri Raj Kumar left the partnership firm, due to which a dissolution deed was executed, thus the remaining two members continued as partners. On 1^st April 2010 due to difference of opinion, another dissolution deed was executed. On the basis of the deed the Petitioner filed a request under Form TM 24 (to record the assignment).

The Petitioner later filed a civil suit seeking permanent in junction against the respondent for the use of the trade mark “BAWA/BAWA FEED” and the respondent also filed a counter suit against the Petitioner.

Issue:

Where a partner claims to be Proprietor of trademarks and the same is being used for partnership business, whether ownership of such trade marks will rest with partner or with the partnership.

Sections/Acts Referred:

Section 14 of the Partnership Act, 1932

Section 18 of the Trademarks act 1999

Appellant Argument:

The Petitioner was aggrieved by the fact that the Respondent had registered the trademark in question under his own name using the firm’s address as the service of address. The Petitioner claimed that the respondent had violated Sections 11, 18, 47 and 57. The Petitioner stated the respondent should have mentioned that there was a partnership in existence.  The Petitioner further claimed that the trademark came into use only with the commencement of the partnership. This act of the respondent therefore caused the Petitioner to lose his rights over the mark as well. The Petitioner added that only after the partnership came into existence did the trademark come into use. And after the final dissolution, the Petitioner claimed the respondent had allowed the Petitioner to carry on the business of the firm. The Petitioner also added that none of the partners were having individual business before the partnership deed. The Petitioner further emphasized on the balance sheet document submitted by the Petitioner, where the entry of Rs.10,000 was shown in as assets in the books of account against the entries of two trademarks. Therefore the money had been spent during the course of the partnership.

Respondent’s argument:

The respondent stated that he had conceived and coined the mark and had been using it since 2001. He also stated that he was unable to show evidence for the same since the business at that time was not up to the limit so therefore could not be registered with various government departments.  The respondent also stated that he had claimed usage of the mark since April 1^st 2001. He further added that the whole registration process of the mark had taken place during the existence of the partnership, therefore proving that the Petitioner knew of the fact that the respondent had registered the mark under his own name due to the reason that the respondent had conceived the mark. The respondent also accused the Petitioner to have forged an assignment deed. The also stated that the Petitioner had filed a false & frivolous suit seeking for permanent injunction against the respondent restraining him from carrying on business of cattle feed and poultry feed under the trade mark“BAWA/BAWA FEED”or any other related name.

It was also added that, before the partnership deed was signed, the trademark still belonged to the respondent therefore, after the partnership deed came into existence, it could not be claimed that the trademark would belong to the firm.

Trademark Judgment:

The Judgment was based on the evidences so provided by both the parties. The Judgment came to be in the favor of the Petitioner due to the following reasons:

One of the documents submitted as evidence was the balance sheet which had an entry under stock in the year 2005.  And ironically the trademark was also filed the same year and the cost of which was Rs 10,000 which was the same as that of the stock entry. Therefore proving that the trademark was a part of the partnership, and it existed during the period of partnership. Also the respondent was not able to justify the fact that he had been using the trademark since the year 2001. Hence, it was decided that the registration granted to the respondent was to be cancelled due to the misstatements made by the respondent and also the TM 24 requested by the Petitioner to be allowed.

Personal Opinion:

“Little knowledge is a dangerous thing” would be the most ideal statement that is to be used for the respondent. The mere lack of knowledge about the Partnership Act and the Trademarks Act, paved way to the loss of the respondent in this case.A trademark can become an individual’s property as well as become a partnership’s asset.