Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN FRIDAY, THE 16TH DAY OF FEBRUARY 2024 / 27TH MAGHA, 1945 WP(C) NO. 6301 OF 2023 PETITIONER:
SALISH SHAM VISWAN, AGED 48 YEARS, S/O.K.A.VISWAMBHARAN, PROPRIETOR, SINGING ARTISTS ASSOCIATION KERALA (SAA KERALA), GA COLLEGE, KOZHIKODE, PIN – 673014.
BY ADVS.
R.BINDU (SASTHAMANGALAM) G.RAJAGOPAL (KUMMANAM) RESPONDENTS:
1 SINGING ARTISTS ASSOCIATION KERALA, FLAT A2, MADEENA FLAT, NEAR BHAJANA MADOM, ALISSERY, ALAPPUZHA, PIN-688 001, REPRESENTED BY ITS GENERAL SECRETARY, HASEENA HANEEF.
2 THE REGISTRAR OF TRADE UNION & DISTRICT LABOUR OFFICER, ALAPPUZHA, PIN – 688 013.
3 EXAMINER OF TRADE MARK AND GI, GOVERNMENT OF INDIA, TRADE MARKS REGISTRY, INTELLECTUAL PROPERTY BUILDING, GST ROAD, CHENNAI, PIN – 600032.
4 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF LABOUR, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.
SMT. VIDYA KURIAKOSE, GP, SRI.GIRISH KUMAR.V., CGC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 6301 OF 2023 -2- JUDGMENT The petitioner says that he is a proprietor of a business concern by name ‘Singing Artists Association Kerala’ and that he has obtained registration of such name and logo, under the Trade Marks Act, 1999, and has produced Ext.P1 in substantiation.
2.
The petitioner alleges that he came to be aware that the 1st respondent has, however, obtained registration under the Trade Unions Act, 1926, from the 2nd respondent – Registrar of Trade Union & District Labour Officer, using the same name and logo as his; and therefore; that he preferred Ext.P3 application before the said Authority, invoking the provisions of Section 10 of the Trade Unions Act, for cancellation of the registration of the 1st respondent; but which has now been responded to by him, through Ext.P4, saying that, since the registration claimed by
WP(C) NO. 6301 OF 2023 -3- him was obtained under the provisions of the Charitable Societies Act, the said Authority obtains no jurisdiction to consider his complaint. The petitioner asserts that Ext.P4 is illegal and prays that it be set aside; and consequently that the 2nd respondent - Registrar be directed to reconsider Ext.P3 in its proper perspective.
3.
Sri.R.Bindu (Sasthamangalam) - learned counsel for the petitioner, pointed out that, Ext.P4 proceeds on the wrong assumption that his client has obtained registration of the name and logo of his entity under the provisions of the Charitable Societies Act; while, his specific case is that they have been registered under the Trade Marks Act. He submitted that, therefore, when the 2nd respondent considered the application of the 1st respondent for registration under the Trade Unions Act, had his
WP(C) NO. 6301 OF 2023 -4- client been aware of it, he would have certainly been able to object to the use of the name and logo, which is rightfully his under the Trade Marks Act and which could not have been violated, under the former Act. He thus reiteratingly prayed that Ext.P4 be set aside;
and that Ext.P3 be then ordered to be reconsidered by the 2nd respondent appropriately.
4.
Sri.V.Girish Kumar – learned Central Government Counsel for respondent No.3, submitted that his client has been arrayed in this writ petition unnecessarily because, there is no proceeding pending before him; and that, in any case, he would not obtain jurisdiction, because the essential complaint of the petitioner is that his Trademark has been violated by the 1st respondent, in having obtained registration of their name and logo under the Trade Unions Act, from the 2nd
WP(C) NO. 6301 OF 2023 -5- respondent.
5.
Smt.Vidya Kuriakose – learned Government Pleader, on the contrary, submitted that the jurisdiction to consider the petitioner’s complaint can only be the 3rd respondent because, if there is any violation of the Trademark, it is for the said Authority to take necessary action. She added that the petitioner may also obtain other remedies under the Civil Law against the 1st respondent; and therefore, that the 2nd respondent was justified in having issued Ext.P4.
6.
I am afraid that I cannot find favour with the afore submissions of Smt.Vidya Kuriakose because, when one reads Ext.P4, it is clear that the 2nd respondent has been misdirected by an assumption that the petitioner’s entity was registered under the provisions of the Charitable Societies Act. Even
WP(C) NO. 6301 OF 2023 -6- if this be so, it is irrelevant because, the crucial aspect is whether the petitioner had his name and logo protected under the Trademarks Act; and if so, whether a registration of another entity in the same name and logo could have been permitted by the 2nd respondent.
7.
But, the 2nd respondent, in Ext.P4, obviously thought that the complaint was only relating to misuse of logo and name, which is beyond his powers to consider; however, without understanding that the complaint is not that, but that the 1st respondent had obtained their registration under the Trade Unions Act with the name and logo, which may be untenable, it being protected by the Trade Marks Act in favour of the petitioner.
8.
In the afore circumstances, I have no doubt that Ext.P4 cannot find my favour; and that this matter will require to be reconsidered
WP(C) NO. 6301 OF 2023 -7- by the 2nd respondent.
9.
Before I proceed, I must record that, even though summons from this Court has been validly served on respondent No.1, they have chosen not to be present in person, or to be represented through counsel; thus inferentially guiding me to the impression that they have nothing to offer in answer to the various allegations in this writ petition.
Resultantly, I allow this writ petition and set aside Ext.P4; with a consequential direction to the 2nd respondent to reconsider Ext.P3, after affording the petitioner, as also the 1st respondent, necessary opportunity of being heard; thus culminating in an appropriate fresh order, as expeditiously as is possible, but not later than three months from the date of receipt of a copy of this judgment.
I, however, clarify that this Court has not
WP(C) NO. 6301 OF 2023 -8- entered into the merits of any of the rival contentions; and they are all left open to be decided appropriately by the 2nd respondent.
Further, my observations herein are not intended to influence or trammel the said respondent, but solely for the purpose of this judgment.
After I dictated this part of this judgment, Smt.Vidya Kuriakose – learned Government Pleader, submitted that, since, under Section 10 of the Trade Unions Act, the jurisdiction of the 2nd respondent is limited to verifying whether there has been fraud committed by the 1st respondent, in obtaining their registration, the question of maintainability of Ext.P3 may also be left open to be decided appropriately by the said Authority.
No doubt, since this Court has not concluded affirmatively on any of the issues, this aspect can also be considered by the 2nd respondent,
WP(C) NO. 6301 OF 2023 -9- while the afore exercise is completed.
Sd/- DEVAN RAMACHANDRAN JUDGE akv
WP(C) NO. 6301 OF 2023 -10- APPENDIX OF WP(C) 6301/2023 PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF TEHE CERTIFICATE ISSUED TO THE PETITIONER BY THE 3RD RESPONDENT DATED 18-03-2022 EXHIBIT P2 TRUE COPY OF TEHE COMPLAINT SUBMITTED BY TEH PETITIONER BEFORE THEE 2ND RESPONDENT DATED NIL EXHIBIT- P3 TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 22-11-2022 EXHIBIT -P4 TRUE COPY OF THE LETTER DATED 23-12- 2022 ISSUED BY THE 2ND RESPONDENT