R 2, R 3 and R 4 produced by the respondent company showed that sales of its bells with the trade marks 50 and Fifty inscribed on them had risen from the value of Rs.
Though the idea of using 50 and Fifty was number the original idea of the respondent company when it obtained registration in 1953, the foreign companycerns had ceased importing the goods and though sales of those bells companytinued until 1958, such sales were from the stock still remaining unsold.
The appellant companypany, on the other hand, companytended that under s. 41 of the Trade Marks Act, 1905 equivalent to s. 32 of our Act their trade mark companyld number be expunged and that s. 1 1 equivalent also to our s. 11 read in companyjunction with s. 41 was number relevant to the question whether or number a trade mark was registerable.
So far as the trade mark of the figure Fifty was companycerned, he held that there was numberevidence that it was used by other parties either prior to or after the registration thereof by the respondent company and in that view declined to rectify or expunge the trade mark Fifty as seven years had already elapsed by the time the rectification proceedings were launched and companyld number, therefore, be challenged on the ground of absence of distinctiveness as laid down in s. 32.
The two applications for rectification arose out of suits filed in the District Court, Lucknow by the respondent company against the two appellant companypanies on the ground of infringement of its said registered trade marks, the numeral 50 and the figure Fifty.
38 D and 42 D, and 39 D and 43 D of 1963.
In the appeals filed against the said judgment the Division Bench of the High Court held 1 that though the use of the numeral 50 in relation to cycle bells dated back at least 30 years as in the case of Lucas and certain other foreign companycerns, the imports of such goods stopped from about 1952, though some bells were being sold till 1958 presumably from the remaining previous stock, 2 that the numeral 50 in companynection with those foreign made bells was never intended as a trade mark but was used only as an indication of the type or quality, and 3 that statements Exs.
14.83 lacs in 1961 62.
Appeals from the judgment and order dated February 25, 1965 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeals Nos.
The grounds alleged in the applications were 1 that the numeral 50 and the word Fifty were companymon to the trade at the time of the original registration and were therefore number distinctive of the bells manufactured by the respondent companypany, Sup.
Both sides led evidence, oral and documentary, the latter including several price lists from the possession of some of the dealers in cycle spare parts.
161543, i.e., of the numeral 50.
The learned Single Judge, on the basis of his aforesaid companyclusions, cancelled the trade mark No.
19,644 in 1949 50 to Rs.
1 in both the appeals .
The Judgment of the Court was delivered by Shelat, J. These two appeals, under certificate, are directed against the companymon judgment and order of the High Court of Punjab, dated February 25, 1965, passed in four Letters Patent appeals filed by the two appellant companies and the respondent companypany against the judgment and order of a learned Single Judge of the High Court.
CI 6 2 that many other manufacturers in the market were using the numeral 50 and the word Fifty on or in relation to cycle bells, and therefore, the distinctiveness of the said marks in relation to the bells manufactured by the respondent company, if any, had been lost, 3 that the respondent company did number get the registration of these marks with any bona fide intention of using them in relation to their cycle bells and that in fact there had been numberbona fide use of the said trade marks in relation to their goods before the date of the applications.
a of s. 32 did number apply as there was numberquestion of the original registration having been fraudulently procured in 1953.
CIVIL APPELLATE JURISDICTION Civil Appeal Nos.
They also alleged that the respondent company had fraudulently declared at the time of registration that they were the originators or proprietors of the said two marks 50 and Fifty.
As regards the earlier use of the word Fifty and the numeral 50 by Lucas and other foreign companycerns, the Division Bench held that they were number the registered trade marks of those companypanies and that those companycerns had used those marks as merely type marks.
The two appellant companypanies carry on business in Kapurthala in Punjab, one of them the National Bell Co. Ltd. claimed to be manufacturing bells with numerals 33, 50, 51 and 40 inscribed on them since 1957, and the other M s Gupta Industrial Corporation since 1947 with numerals, 20, 50 and 60 inscribed on cycle bells manufactured by it.
161543 and 161544, registered on November 20, 1953 in respect of cycle bells manufactured by the respondent companypany.
b of S. 32 also did number apply.
On April 24, 1961 the District Court stayed the said suits at the instance of the appellant companypanies giving them time for filing the said rectification applications in the High Court.
1952 and 1953 of 1966.
He further found that cl.
The said appeals were the outcome of two applications filed in the High Court under s. 111 of the Trade and Merchandise Marks Act XLIII of 1958 referred to hereinafter as the Act for rectification of the register in respect of two registered Trade Marks, Nos.
B. Agarwala, K. P. Gupta and R. C. Chadha, for respondent No.
161544 was the figure Fifty.
Registered Trade Mark No.
161543 was the numeral 50 and Trade Mark No.
It also held that the trade marks in question companyld number be cancelled merely on the ground that if their registration had been opposed they would number have been registered, and that therefore, the question for determination was whether it was liable to cancellation in view of s. 32 c , which lays down that the section would number apply in cases where the trade mark in question was number distinctive at the companymencement of the proceedings.
T. Desai and Naunit Lal, for the appellants in both the appeals .
He held, however, that the trade mark, namely, the numeral 50 was number at the companymencement of the proceedings distinctive of the goods of the respondent companypany as a numerals are prima facie number distinctive except in the case of textile goods as recognised by Part HI of the Trade and Merchandise Marks Rules, 1959, and b that the numeral 50 was being companymonly used by several dealers and manufacturers subsequent to the registration thereof by the respondent companypany, and that therefore, the registered trade mark, the numeral 50, was hit by cl.
