LexKABUSHIKI KAISHA TOSHIBA versus TOSHIBA APPLIANCES CO. AND ORS .
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ec [2008] 9 S.C.R. 670 fe sr KABUSHIKI KAISHA TOSHIBA ... v TOSHIBA APPLIANCES CO. AND ORS . . A (Civil Appeal No.3639 of 2008) m 9· MAY 16, 2008 @ . . : 91lS.B. SINHA AND LOKESHWAR SINGH PANTA, JJ.] I- -i?.( ni TRADE AND MERCHANDISE MARKS ACT, 1958: 21 § -io ss. 46 and 56 - Application for rectification of registered f'(ff!de mark - Trade mark sought to be rectified, being renewed _frfym time to time - Company maintaining service centers in ~ia - No intention on its part to abandon the right - Suit filed Jilljainst applicant - No injunction against applicant granted - tf.pp/icant not manufacturing relevant items - HELD: There @ was delay on part of applicant in filing application - Applicant did not show as to how it would be injured if trade mark was 'fillowed to stand - Suit to be decided expeditiously - Trade - Mark and Merchandise Marks Rules, 1959 - r94 - Delay/ /aches. E bt s.23 - Registration of trade mark - Purpose of - Ex- plained. ss.46 (1) (a) and (b), 46 (3) and 56 - Applicability of - • Explained. F ss. 46 and 56 - Application for rectification of registered -. trade mark - 'Aggrieved person' - Explained - In instant case applicant was an 'aggrieved person' and application was main- tainable uls 46 - Party G ss. 109 - Appellate jurisdiction of High Court - Scope of - Explained. WORDS AND PHRASES: y 'Aggrieved person' - Connotation of in the context of s. 46 >-- H 670 KABUSHIKI KAISHA TOSHIBA v TOSHIBA 6"11 APPLIANCES CO. AND ORS . ., ) of Trade and Merchandise Marks.Act, 1958. A The appellant company, which had adopted the mark TOSHIBA, obtained, in the year 1971, trade mark registra- tion No.273758 under the Trade and Merchandise Marks Rules, 1959, in respect of electrical appliances including B washing machines, spin dryers etc. It served a notice upon the respondent, an Indian company, carrying on 'r business of marketing various electrical appliances un- der the trademark 'TOSIBA,' calling upon it to desist from using the said trademark in respect of electrical goods including electric iron or any other goods whatsoever. The c respondent in turn filed Application No. CAL No. 573 pur- ported to be u/ss 46 and 56 of the Trade and Merchandise Marks Act, 1958 read with Rule 94 of the Rules, before the Registrar, Trade Marks seeking rectification of the regis- tered trade mark no.273758 in respect of items covered in D .. Class 7 of the Fourth Schedule to the Rules, alleging that it wasusing the mark 'TOSIBA' in respect of Domestic Electrical Appliances viz., auto irons, etc. covered in Class 9 of the Fourth Schedule to the Rules since the year 1975 and the mark in question offended the provisions of the E Act; that the mark sought to be removed was not on the commencement of the proceedings distinctive of the goods of the registered proprietor. The respondent also averred that it was an aggrieved party as it was served r with a notice by the appellants to discontinue the use of F the word 'TOSIBA' which the respondent adopted in 1975. It filed two more applications bearing CAL No. 574 and CAL No. 575. The a~pellant also filed a suit in the High Court praying for a decree for permanent injunction re- straining the respondent from using the mark 'TOSIBA' G or any other deceptively similar mark in respect of electri- cal goods including electric irons, immersion rods, toast- ~ ers, table lamps, ovens and stoves. The Deputy Registrar of Trade Marks partly allowed Application No. CAL No. 573 filed by the respondent and directed .that the register of H 672 SUPREME COURT REPORTS [2008] 9 S.C.R. A Trade Mark be rectified by deleting the goods 'washing "' machines' and 'spin dryers' from Trade Mark No. 273758 in Class 7. Rectification was also directed on the other applications CAL No. 574 and CAL No. 575. The appellant filed appeals before the High Court. The appeal arising B out of CAL no. 573 was allowed partly by the Single Judge upholding the order of the Deputy Registrar so far as the application related to s. 46 (1) (a) of the Act. But the plea of the appellant was rejected as regards s. 46 (1) (b). The ~ intra-court appeal filed by the appellant was dismissed c by the Division Bench of the High Court. In the instant appeal, it was contended for the appel- lant that the respondent having not been dealing with ei- ther washing machine or spin dryer, was not a 'person aggrieved' within the meaning of s.
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