T.I Muhammad Zumoon Sahib v. Fathimunnissa , 1959 SCC OnLine Mad 96
- By Kanishka
- Judgment Analysis
Name of the case – T.I Muhammad Zumoon Sahib v. Fathimunnissa , 1959 SCC OnLine Mad 96
Letters Patent Appeal 48 of 1959
Decided On,
21 July 1959
At,
High Court of Judicature at Madras
By, THE HONOURABLE CHIEF JUSTICE MR. P. V. RAJAMANNAR &THE HONOURABLE MR. JUSTICE GANAPATIA PILLAI
For the Appearing Parties:
Published In
1960 AIR (MAD) 80
ISSUE
Can a Legal Heir Of any Deceased Person (Also Being the Registered Proprietor Of a Respective Trademark ) Institute a Suit Case For infringement of such a trademark Priorly to their names being entered the Register Of Trademarks Under Section 35 of the Trade Marks Act , 1940?
RULE
Section 21 of the Trade Mark Act , 1940 Provides The Registered and Determined Owner of the Trademark An Exclusive Right To use The Same.
Section 35 States That When Someone Becomes Entitled To the Trademark (By way of Assignment or Devolution on Death ), They Suppose to Make an Application of the Registrar So that Their Name to be Registered as the New Owner . This Registration Takes place After Evidence of Title .
ANALYSIS
In This Case , The original / Real proprietor Of the Trademark i.e ‘ 708 Yoonus Beedi ‘ is no more , His heir , Successors (Plaintiffs ) Carried Business And also Instituted a Suit with Againist the Defendant For Falsely Adopting a Duplicate Trademark.
Gradually , They had not Registered Their Names As sole;y Proprietors Under section 35 At the Time of Instituting the suit , But also Later on , In the Trial , They have Secured The Registrar’s Certification Of their Title , and it was Admitted Into Evidence . The Defendant for this Case Contended That The Plaintiffs Were Not Allowed or Permitted To Sue Unless They Were Registered First .
Hence the Court Dismissed The Contention By Elucidating and Stating That ,
The Rights To the trademark in the personal law get Automatically Transfered To the Heirs On Death of that Respective Person .
Registeration Under Section 35 Merely Amounts To a Formal Acknowledgement Of Such a Right, it Does not Directly Vest The Right.
The Cause of Action is The Infringement Rather Than the Registeration .
To Accept The Defendant’s Submission it Would be to Hold That No one Can Prevent Infringement Between The Death And Registeration .
CONCLUSION
In the Judgement of this Case , It has Been Stated That The Frightful Owners Can File a Case of Trademark Infringement Even Before They would have Been Registered as Owners . The Plaintiffs were Gotten Registered in the middle Course Of the The Trial Meant That the Suit was Proper .
The Appeal was denied by the court , and the Rights Of the plaintiffs Were Established .
