In 1932 the respondent companypany was incorporated as a private limited companypany under the Indian Companies Act, 1913 and the said Ashok Chandra Rakhit assigned the goodwill of his said business and his right, title and interest in the said mark to the respondent companypany.
On the 22nd August 1917 Haripriya Konch, the father and natural guardian of the minor purchaser, acting as such and on behalf of the minor, companyveyed to one Ashok Chandra Rakhit, son of the said Durga Charan Rakhit, the goodwill of the business including the right, title and interest in the said mark and the said Ashok Chandra Rakhit carried on the said business and marketed ghee tinder the said mark.
In 1933 the respondent companypanys said mark was registered in the Trade Mark Registry at Hong Kong under the provisions of, the Hong Kong Trade Marks Ordinance, 1909 and the fact of such registration was published in the Straits Settlements Government Gazette.
10,000/ and Rs.
On the 15th September 1926 the said Ashok Chandra Rakhit caused the fact of his ownership of the said mark to be advertised in the Calcutta Exchange Gazette and on the 22nd December 1926 caused to be registered with the Registrar of Assurances of Calcutta a declaration of his ownership of the said mark.
On the 27th January 1915 the said sale was companyfirmed by a Deed of assignment executed by the Official Assignee.
15,00,000/ , and the annual companyt of advertisement being anything between Rs.
The volume of the respondent companypanys business in ghee done under the said mark is said to be companysiderable, the annual turn over varying from Rs.
112 of 1950 arising out of the order dated the 24th day of March 1950 of the Registrar of Trade Marks in the matter of Registered Trade Mark No.
Appeal from the Judgment and Order dated the 23rd day of August 1951 of the High Court of Judicature at Calcutta in Appeal No.
By his letter dated the 29th November 1943 the Registrar proposed that there should be a disclaimer of the word shree The respondent companypany by its agents letter dated the 15th February 1944 intimated to the Registrar that, it companyld number agree to the proposal as the trade mark Shree is very important in the device and the ghee is companymonly designated by the trade mark Shree.
10,00,000/ to Rs.
39,000/ .
The respondent companypany also submitted an affidavit affirmed by one Bidyut Bikash Rakshit, a director of the respondent company pany, in support of its objection.
It is also said that the ghee marketed by the respondent companypany and its predecessors is well known by the said mark and is always asked for under the name Shree.
The said Durga Charan Rakhit having subsequently been adjudged insolvent all his properties including the goodwill of his ghee business and the said mark vested in the Official Assignee of Calcutta.
C. Isaacs, P. K. Ghosh, with him for the res pondents.
K. Daphtary, Solicitor General for India K. S. Shavakasha and R. H. Dhebar, with him for the appellant.
In 1935 one Chiranjilal Sharma was, on like companyplaint, companyvicted by the Chief Presidency Magistrate for infringement of the said mark.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
116 of 1953.
A numberice of the said sale was advertised in the Calcutta Exchange Gazette on the 25th January 1915 by an attorney acting on behalf of the purchaser.
The Registrar number having then pressed his proposal for disclaimer the respondent companypanys said mark was duly registered as trade mark No.
On the 15th January 1915 the goodwill of the said business including the said mark was sold by the Official Assignee by public auction and one Hem Dev Konch, a minor, was declared as the highest bidder and purchaser.
The Judgment of the Court was delivered by DAS J. This is an appeal from the judgment and order pronounced on the 23rd August 1951 by a Division Bench of the High Court at Calcutta in Appeal No.
In 1934 two persons, Rajendra Prasad and Dilliram, were, on companyplaint, made on behalf of the respondent companypany, companyvicted by the Chief Presidency Magistrate of Calcutta under section 486, Indian Penal Code, for infringing the said mark and such companyviction was upheld by the Calcutta High Court.
That mark was and is a device companysisting of the word Shree written on the top in bold Bengali character, having below it an ornamental figure with the word Shree written in the centre in small Deva Nagri character, the word TRADE written in English in an inclined manner on the left hand side of the ornamental figure and the word MARK written in English in an inclined manner on the right hand side of the ornamental figure and the words Shree Durga Charan Rakhit written at the bottom in Bengali characters.
The ornamental figure referred to above companysists of a triangle over which is another inverted triangle and in the centre the word Shree, in small Deva Nagri character as mentioned above, the whole of the said ornamental figure being enclosed in a circle outside which are twelve ornamental petals.
April 15.
The material facts are as follows In the year 1897 one Durga Charan Rakhit since deceased adopted as his trade mark in respect of the ghee produced and marketed by him a device which, with some slight modification number materially altering its essential features, was, on the application of the respondent companypany, registered as its trade mark No.
112 of 1950 reversing the decision of the Registrar of Trade Marks dated the 24th March, 1950 whereby he had rectified the register by inserting a disclaimer of the word Shree forming part of the respondent companypanys registered trade mark No.
In the affidavit affirmed by Malli Nath Rakhit, a director of the respondent companypany and filed in these proceedings, this mark has throughout been referred to as the said mark SREE.
