NATIONAL BELL CO. & ANR. versus METAL GOODS MFG. CO. (P) LTD. & ANR.

Citation: [1971] 1 S.C.R. 70 · Decided: 18-03-1970 · Supreme Court of India · Bench: J.M. SHELAT · Disposal: Dismissed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

70 
NATIONAL BELL CO. & ANR. 
v. 
METAL GOODS MFG. CO. (P) LTD. & ANR. 
March 18, 1970 
(J. M. SHELAT AND C. A. VAIDIALINGAM, JJ,J 
Trade and Merchandise Marks Act (43 of 1958), ss, 9(3), ll(a) and 
(e), 32(b) and (c) and 56-'Distinctive', meaning of-Numeral as trade 
nu1rk-'Aggrieved person, and 'without sufficient cause' in s. 56-Scnpe 
of-'DisentJtled to protectien', 
n-zeaning 
of-Abandonment of right in 
trade 1nark, when inferred-Rectification of register-Discretion of Court. 
For a number of years prior to 1952 cycle bells manufactured by Lucas 
Jlnd other foreign concerns bearing the numbers '50' and other numerals 
were in tbe Indian market. 
After 1952, the import of foreign bells was 
prohibited, and though foreign made bells with the numerals '50' were 
being sold as late as 1958, the sales were from the stock remaining out 
ot the earlier imports and were few and far between. In 1953, the respon-
dent company got registered 
two trade marks in respect of cycle bells 
being the numeral '50' and the figure 'Fifty'. The appellant companies 
were manufacturers and also dealers fn cycle bells and were selling their 
cycle bells with 
~°').· numeral '50' inscribed on them. The respondent 
therefore, filed si.Ms in 1959, against the appellants, alleging infringement 
of its trade marks. 
ln ,1961, the appellants applied for stay o'f trial of the 
suits and filed appli~ations in the High Court for rectification of th" regis-
ter by cancelling the trade marks of the respondent under s. 5o of the 
Trade and Merchandise Marks Act, 1958. 
A single Judge of the High 
Court, refused to expunge the trade mark 'Fifty' but ordered the cancella-
tion of the trade mark '50'. In appeals to the Division Bench of 
tbe 
High Court, the order cancelling the trade mark '50' was set asiee. 
In aopeals to this Court, it was contended that : ( 1) the trade marks 
in question were common and not distinctive at the date of their registra-
tion as required by s. 9(3), and therefore, ought never to have been re-
gistered; (2) that the numeral '50' is not distinctive; (3) that the use of 
the trade mark was likely to deceive or cause confusion and hence the 
registration should be cancelled under s. 32(b) ands. l!(a); (4) that tbe 
respondent had imitated the use of the marks by Lucas and other foreign 
concerns that therefore they would be 
disentitled 
to protection under 
s. ll(e) and hence the registration should be cancelled under s. 32(h); 
and (5) that the trade marks were not, at the commencement <if the pro-
ceedings, distinctive and hence Hable to be cancelled under s. 32(c). 
HELD: (ll Under s. 32(b) and (c) the original registration of the 
trade mark has, after the expiration of 7 years from the date of registra-
tion to be taken to be valid in all respects including in rectificatior.. appli-
cations under s. 56 unless it is proved : ( 1) the trade mark was registered 
in contravention of the provisions of s. 11 or offends against the p·rovisions 
of that section on the date of the commencement of the proceeding or 
(2) that the trade mark was not, at the commencement of the proceedings 
distinctive of the goods of the registered proprietor. Section ll(a) prohibits 
the registration of trade mark which would be likely to deceive or cause con· 
fusion, and •. 11 ( e) prohibits the registration of trade marks if they were 
•11ch that they were otherwise disentitled to protection in a court. Section 
A 
B· 
c 
D· 
E 
F 
G 
H 
A 
B 
c 
D 
E 
F 
H 
NATIONAL BELL CO, V. METAL GOODS CO. 
71 
56(2) confers a right on any person aggrieved by an entry made in the 
register without sufficient cause or by an entry wrongly remaining in the-
register, to apply for expunging or varying such an entry. Since 'an aggriev-
ed pe'Cson' includes a person who has, before registration, 
used the trade 
mark, and a person against whom an infringement action is taken, and the 
words 'without sufficierit cause' relate to the time df original registration, 
the appellant could apply for concellation on the ground that the trade 
mark in question was not distinctive within the meaning of s. 9(3). 
But in view of the fanguage of s. 32, no contention could be raised in 
the present case, that the trade mark '50' and 'Fifty' were not distinctive 
under s. 9(3), that is, adapted to distinguish the cycle bells of the respon-
dent, at the dare of regiSlration, as, seven years had elapsed since the date 
of the registration. [78 D-F; 79 B-HJ 
Paine & Co. v. 

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