1984 PLP 648 (CLC)

‑‑ Ss. 37, 46 & 76‑Trade mark‑Rectification of‑Firm procuring registration of trade mark of chaff‑cutters dissolved and ceasing to exist and reconstitution of firm not claimed‑No explanation given as to why firm failed to get trade mark renewed within statutory period‑Evidence produced also not suggesting that firm had been manufacturing chaff‑cutters during last nine years‑Renewal obtained after this period not shown to have been made by com petent authority‑Account books being best evidence for proving manufacture of goods, not maintained‑Respondent however succeeding on basis of evidence mustered by him against such firm‑Order of cancellation of firm's registration, upheld in circumstances. ORDER Messrs Karim Industries Faisalabad got a Trade Mark "Seth Muhammad Rafiq Toka" registered on 17th November, 1964 under trade mark No. 42488 in clause 7, in respect of chaff‑cutters. The re gistration was to remain in force for a period of seven years. It was due for renewal on 17th November, 1971. As no application for renewal, in accordance with law was moved, the trade mark was removed from the register, on account of abandonment and non‑payment of renewal fee. However, notwithstanding this removal, on the appellant's belated move, the trade mark was renewed on 12th March, 1979. ‑

2. The respondent who manufactures chaff‑cutters and is the regis tered proprietor of trade mark No. 37397 "Seth Muhammad Tufail" commenced proceedings giving rise to this appeal, by filing an application under sections 37 and 46 of the Trade Marks Act, 1940, for rectification of register, by cancellation of the registration of the appellant's trade mark. The grounds put forth by him for such rectification were that the appellant had abandoned the user of the said trade marks since long ; the firm "Karim Industries", in whose name the registration was obtained, was dissolved on 16th October, 1969 and thereafter the chaff‑cutters bearing the trade mark "Seth Muhammad Rafiq Toka" were not manufactured. It was also pleaded that the renewal of the registration of trade mark was due on 17th November, 1971 but it was illegally renewed on 12th March, 1979. In support of these submissions the respondent placed certain documents on the file of the Tribunal below. The appellant controverted these contentions and resisted the rectification.

3. The learned Registrar, Trade Marks by his order, dated 24th April, 1983 allowed to the respondent's application and directed the removal of the appellant's trade mark. The legality of this order has been called in question by him through this appeal under section 76 of the Trade Marks Act.

4. After evaluation of the evidence placed before him, the learned Registrar, took the view that the appellant's firm ceased to exist on 16th October, 1969 when it was dissolved and thereafter it did not manufacture the chaff‑cutters using the registered trade marl;. He also maintained that no cogent reason was advanced by the appellant for not obtaining the renewal for a period of seven years. He further held that the renewal was not made under the signatures of any competent authority like the Assistant Registrar, Deputy Registrar or the Registrar. The fact that the appellant did not produce any receipt showing the purchase of coal or raw material, as evidence of the manufacture of chaff cutters, also in fluenced the decision of the Registrar.

5. I have heard the learned counsel for the appellant. He refuted the findings recorded by the learned Registrar that after 16th October, 1969 the appellant had abandoned the manufacture of the chaff‑cutters and the user of the registered trade mark. In this connection he invited my attention to certain affidavits to the effect that the appellant is the, manufacturer of the chaff‑cutters and the deponents; have been purchas ing the same from him. He then referred to some "receipts/bilties" of different transport companies, showing that the consignments of chaff cutters were despatched by the appellant to his customers. Reliance was also placed by him on a certificate, dated 14th March,, 1983 issued by the I.T.O., "A" Circle, Faisalabad and the income‑tax assessment order of the appellant for the assessment years 1978‑79 to 1980‑

81. In the certi ficate it is stated that as per report of the Inspector, Income‑tax, appellant manufactures "Seth Muhammad Rafiq Toka". Under the income‑tax assessment orders, the appellant has been assessed to, income‑tax in respect of agricultural implements but as these are exempt from tax, no demand was raised against him.

6. The learned counsel then referred to the order, dated 29th Feb ruary, 1972 passed by the Deputy Registrar Trade Marks, whereby the rectification application, moved by Messrs Khan Foundry Workshop against the appellant, was turned down. It was urged, that the docu mentary evidence produced by the appellant was not given due weight by the learned Registrar and he was unnecessarily impressed by the documentary evidence of the respondent which largely related to the volume of work handled by that concern. His other submission was that the renewal of the appellant's trade mark was made on 12th March, 1979 and it was after considerable lapse of time that the respondent applied for rectification. The observations made by the Registrar in the impugned order, that the renewal was not made under the signatures of the competent authority was also assailed by the learned counsel.

7. I have examined the record to weigh the arguments advanced by the appellant's learned counsel. The copy of the dissolution deed, dated 16th October, 1969 (D. 1), shows that the firm "Karim Industries" was dissolved. Its dissolution is conceded by the learned counsel as well. However, his stand is that a partner of a dissolved firm has the right too use the trade mark. The viability of this argument, is open to serious doubts. The reason being that originally the registration was procured by the firm, which as stated above, was dissolved in the year 1969, but strangely enough though the firm‑had ceased to exist about nine years ago, yet the renewal was got by the appellant in its name on 12th March, 1979. The reconstitution of the firm bas not been claimed. The learned counsel has also failed to persuade me t1~at renewal was made by a com petent authority. No plausible explanation has been given as to why the appellant failed to get his trade mark renewed within the statutory period A and approached the Organization in this behalf, after nine years. The inferences drawn by the learned Registrar in this respect, have remained unshaken. The affidavits of the customers had little evidential value and as regards the "receipts/bilties" of the transport companies, these mostly relate to the year 1982 except one or two which pertain to late 1981. The certificate, dated 14th March, 1983 does not suggest that the appellant has been manufacturing chaff‑cutters during the period from 1969 to 1979. As regards the income‑tax assessment orders, these were passed after filing of the rectification application by the respondent and in any case, chaff‑cutters do not find mention therein. I do not think that these docu ments can advance the appellant's cause in any manner.

8. It may be observed that the account books maintained by the appellant were the best evidence, to prove that be has been manufactur ing chaff‑cutters. The account books were, however, not produced by him. When asked that what was the reason for such non‑production, his learned counsel submitted that these were not maintained and he was assessed on "no account" bases. On the other hand in the affidavit dated 18th January, 1982 sworn by Muhammad Rafiq it is averred "the record pertaining to the sale of chaff‑cutters under the trade mark ''Seth Muhammad Rafiq Toka" is not readily available, as much of the record has been misplaced/ /destroyed in shifting of the office by my company from time to time".

9. Regarding the Deputy Registrar's order, dated 29th February, 1972 it is to be notice that the respondent was not party to it. It has not been shown that his application was violative of any limitation period. The respondent succeeded on the strength of the, evidence mustered by him against the appellant. It is obvious that the premises on which the Tribunal below, cancelled the appellant's registration are well‑grounded. There is no good reason to interfere with the impugned order. Dismissed in limine. M. Y. H. Appeal dismissed.