Law: Trade Marks Act, (V of 1940)

Section: 10,10(2),65,76

Trade Marks Act (V of 1940)--- ----Ss. 10, 65 & 76---Registration of identical or similar trade mark---Prohibition---Scope---Honest concurrent use of a trade mark---Exercise of discretion by Registrar of Trade Marks under S. 10(2) of the Trade Marks Act, 1940---Agreement between parties for use of "goodwill" of a business/trademark---Scope---Question before High Court was as to whether when an agreement whereby goodwill to operate a business by the name and style of the trademark was given by owner to another party; did the same also include use of the trademark, with or without the logo---Held, that word "goodwill" and "trademark" were to be treated as blood relatives and "trademark" was a narrower expression than "goodwill"---"Goodwill" encompassed all narrower dimensions of a business within its own---Goodwill of a premises or of a place would worth nothing in case the subject and essence of such business was extracted and for example, if one excluded name of any good restaurant; then there would remain no other asset except immovable property of such restaurant---Trademark, in the present case, could not be restricted to a simple concurrent use of the inventor and it would come within ambit of honest concurrent use under circumstances described in the agreement between the parties---High Court observed that trademark in such circumstances was an essential ingredient of goodwill; no illegality therefore existed in the impugned --- Appeal was dismissed, in circumstances. Additional CIT v. Kwality Frozen Foods IT Appeal No. 5023 (Mum.) of 2001 rel. Seventh Edition of Black's Law Dictionary; Noor Muhmmad v. Civil Aviation Authority 1987 CLC 393; Seven Up Company v. Deputy Registrar Trademark 1987 MLD 91; Cluett, Peobody & Co. v. Assistant Registrar Trademark 1991 SCMR 921 and Tabaq Restaurant v. Tabaq Restaurant 1987 SCMR 1090 ref. THIS JUDGMENT DELIVERED BY: MUHAMMAD SHAFI SIDDIQUI, J.--- This Misc. Appeal under section 76 of Trademarks Act, 1940 impugns an order of the Registrar of Trademarks passed in dealing with Opposition No.218/2001 while considering the application of the respondent, registered as No.100857/29. The order on the opposition…

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