Guna Complex, Annexe-I, 2 nd
Floor, 443, Anna Salai,
Teynampet, Chennai – 600 018

(CIRCUIT BENCH SITTING AT DELHI)
ORA/91/2012/TM/DEL & M.P.No. 87/2012 in ORA/91/2012/TM/DEL and
ORA/102 /2012/TM/DEL & M.P. NOs.123/2012, 353/2012 AND 182/2013 IN
ORA/102/2012/TM/DEL
FRIDAY THIS THE 20
TH
DAY OF JUNE, 2014.
Hon’ble Ms. S. Usha
Hon
’ble Mr. Sanjeev Kumar Chaswal
In both cases:
Darshan Kumar,
Son of Sh. Ishar Dass,
Proprietor of
M/s Shree Durga Industries,
Imamgarh Road,
Malerkotla – 148023.
… Vice-Chairman
… Technical Member (TM)
.... Applicant
(Represented by Mr.Shailen Bhatia and Mr.Vaibhav Kashyap)
Vs.
1. Ranjit Kumar Sharma, aged about 35 years, son of Sh. Gobind Ram,
Trading as Proprietor of
M/s Bawa Food Industries,
Having office at
Imamgarh road,
Malerkotla, distt.
Sangrur (P.B),
Also at
Village Adampal Road,
Malerkotla – 148023
2. The Registrar of Trade Marks
Trade Marks Registry at New Delhi,
Baudhik Sampada Bhawan,
Sector -14, Dwarka,
New Delhi
– 110 075.
.... Respondent No.1
…. Respondent No.2
(Represented by Mr.Rahul Rajput)
ORDER (No.90 of 2014)
Hon’ble Mr. Sanjeev Kumar Chaswal, Technical Member (Trade marks):
The applicant has filed two rectification applications ORA/91/2012/TM/
DEL and ORA/102/2012/TM/DEL having a common issue related to

2 application No. 1310453 in class-31 for cattle feed, poultry feed and other allied goods and application No. 1310454 in class 35 for services, advertising, distribution, marketing, retail and wholesale services relating to cattle feed & poultry feed under the provisions of the Trade Marks Act, 1999
(herein after referred to as Act).
2. As the disputes are common between the parties in both the application Nos.1310453 in class 31 and 1310454 in class 35, one common order is being passed.
The brief facts of the case are:
3.
The applicant started a partnership firm namely M/s Shree Durga
Industries in the year 2004. The said partnership firm consisted of three partners namely Shri. Darshan Kumar (the applicant), Shri. Ranjit Kumar
Sharma (the respondent) and Shri. Raj Kumar, another partner.
4. The applicant ’s partnership firm during the course of its business started using the trade mark “ BAWA/BAWA FEED” for cattle feed, poultry feed and other allied goods. The said trade mark
“ BAWA/BAWA FEED”
was used extensively by the partnership firm for the above goods.
5. During the course of the said business, the partnership firm had advertised the mark “ BAWA/BAWA FEED” amongst the public for the said goods, at large. Mr. Ranjit Kumar Sharma as one of the partners of the applicant ’s firm, filed an application on 22 nd
September, 2004 before the
Trade Marks Registry for registration of the trade mark
“
BAWA/BAWA
FEED” vide application No.1310453 in class 31 and another application No.
1310454 in class 35 claiming use of the mark from 1 st
April, 2001.

3
6. In both the applications the address of the partnership firm located at
Imamgarh Road, Malerkotla was shown by the respondent as address for service.
7. The said trade mark application No.1310453 in class 31 and another application No. 1310454 in class 35 were registered on 16 th
November 2005 and 18 th
November 2005 respectively.
8. On 10 th
March, 2006, a deed of dissolution was executed as one of the partner Shri. Rajkumar left the partnership firm. Subsequently, a new partnership deed was executed between the applicant and the respondent herein continuing the earlier partnership firm under the name and style of M/s
Shree Durga Industries.
9. Due to difference of opinion between the applicant and the respondent, they had executed another dissolution deed on 1st April, 2010 dissolving the partnership business with an understanding that the applicant would take over all the business of M/s Shree Durga Industries as sole proprietor and the respondent would move out of the partnership business.
10. In accordance with the terms of the said dissolution deed and the subsequent arrangement, the applicant had paid certain amount in installments as consideration to the respondent being the outgoing partner from the partnership business.
11. On the basis of a deed of assignment, the applicant had filed a request on Form TM 24, which is still pending for adjudication before the
Trade Mark Registry. As per the assignment deed, the respondent had assigned all his rights in the trade mark in favour of the applicant.

4
12. The applicant had filed a civil suit seeking permanent injunction against the respondent for the use of the trade mark ‘’ “BAWA/BAWA
FEED” and the respondent had also filed a counter suit against the applicant and the same are pending.
13. The present applications for rectifications are moved by the applicant herein to expunge the entries related to registration No.1310453 in class 31 and registration No.1310454 in class 35 on the following grounds. i) Subsequent to the dissolution of the partnership firm, the respondent relinquished his rights in favour of the applicant vide dissolution deed dated 1 st
April, 2010. ii) As per the dissolution deed, the respondent is bound by the terms and conditions set in the dissolution deed dated 22 nd
March, 2010. iii) The respondent had assigned all his rights and interest in the trade marks to the assignee, in respect of the goods and service falling under class 31 and 35 respectively. iv) The applicant is a continuous user of the trade marks; as such the respondent has no locus standi with regard to the said trade marks. v) The respondent had perpetuated fraud and had the entry recorded in his own name as applicant, in place of the partnership firm, in the applications for registration of the trade marks before the Trade Mark Registry in respect of the goods and services falling in the class 31 and 35 respectively.

5 vi) The respondent had applied for registration of trade marks in class 31 & 35 respectively mentioning the address of the partnership firm located at Malerkotla. vii) The impugned trade mark registrations are contrary to provisions of section 18(1) of the Act. viii) The impugned registrations are in violation of sections 11,18,
47 and 57 of the Act. ix) The respondent had no sufficient cause to seek registration in his own personal name when the partnership business was very much in existence and working and especially the respondent being part and parcel of the business. x) The respondent had obtained the registration of impugned trade marks in his own personal name but under the address of existing partnership by concealing material facts before the
Trade Mark Registry. xi) The respondent ought to have disclosed that there is a partnership business in existence and that the other two partners are having interest in the said trade mark. xii) The respondent made false and incorrect averments by concealing the fact about the partnership firm M/s Shree Durga
Industries and about the interest of the partners in the impugned trade mark. xiii) The respondent had registered the impugned trade marks without any bonafide intention on his part to use in relation to those goods for which it was registered. In fact, there has been

6 no bonafide use of the trade mark by the respondent in his personal name till date. xiv) The applicant is an aggrieved person as wrong entries related to impugned trade mark remains on the trade mark register, thus affecting the rights of the applicant as well as causing continuous grave and serious prejudice to him. xv) The respondent had obtained the registration of trade mark in his own name by playing fraud and concealing material facts.
14. The respondent has filed counter statements in both the cases denying the various allegations made in both the applications.
15. The respondent had stated that he had conceived and adopted the trade mark in the year 2001 and since then continuously used the trade marks without any interruption and had made it popular and reputed.
16.
The sale of the respondent’s goods at that time was not up to that limit. So, the unit could not be registered with various Government departments. Hence, the record of the unit could not be documented.
17. The respondent further stated that in the year 2004, the respondent came into contact with the applicant and a partnership deed dated
19/04/2004 was executed between three partners, the applicant, respondent and third partner Mr. Raj Kumar to carry on the partnership business under the name of M/s Shree Durga Industries.
18. Mr. Raj Kumar retired from the partnership business vide Dissolution
Deed dated 10/05/2006 and thereafter the business was carried on by the applicant and the respondent.

7
19. On 1/04/2010, the partnership firm was dissolved on the basis of the agreement dated 22.03.2010 entered between the applicant and the respondent.
20. The respondent had conceived the trade mark and therefore he had filed the two trade mark applications for registration of “ BAWA/BAWA
FEED” in his own name, in respect of cattle feed and poultry feed in class-31 and for services in class-35 on 22 nd
September, 2004 claiming use since 1 st
April, 2001. The registration Certificates were granted in favour of the respondent in respect of above trade marks and the same were dispatched to him by the Attorneys to the respondent ’s address. All the correspondences relating to the registration process were made at the given address of the respondent i.e. Imamgarh Road, Malerkotla, which clearly proves that the applicant was well aware about the registration of the said trade marks in the exclusive name of the respondent.
21. The applicant has also filed applications for registration of trade marks vide application Nos.1973453, 1973454, 2066074 & 2066075 thereby claiming wrong user from the year 01.04.2001 in respect of said trade marks.
On the contrary, the applicant stated in para 24 of his rectification application that he has been using since 2004. The applicant has tried to mislead the
Board by stating wrong dates of use and as such the applicant has no case before this Board.
22. The respondent has also proclaimed that the applicant had managed to forge and fabricate an assignment deed dated 11.05.2010, claiming to be executed by the respondent herein, though the respondent had never signed the assignment deed. The applicant is trying to claim ownership of these trade marks by submitting a forged and fabricated assignment deed to the
Trade Mark Registry.

8
23. The respondent was forced to file a complaint with the local police against the applicant on 25.10.2010 for submission of forged and fabricated assignment deed to the Trade Mark Registry but due to the political clout of applicant, the police did not take action on the respondent ’s complaint.
24. Due to non-initiation of any action by the local Police on the complaint against the applicant, the respondent had filed a criminal complaint before the District Court for initiating action against the applicant under section
420,465,467,468, 471 IPC (under title , “Ranjit Kumar Sharma Vs Darshan
Kumar”).
25. The said complaint is pending in which the statements of the witnesses of the complainant/respondent have been recorded, who have clearly stated on oath that the alleged assignment deed so propounded by the applicant is forged & fabricated by the applicant.
26. It is further stated by the respondent that in 2004, it was specifically agreed between the partners that the trade mark would belong to the respondent only till the subsistence of partnership as it is evident from the affidavit of Mr. Raj Kumar.
27. Applicant had filed a false & frivolous suit seeking for permanent injunction against the respondent restraining him from carrying on business of cattle feed and poultry feed under the trade mark “BAWA/BAWA FEED” or any other related name. The said civil suit was dismissed by the Ld. Civil
Judge holding that it has no jurisdiction to entertain & decide the said civil suit.

9
28. The applicant as well as the respondent filed separate cross Civil suits in the court of District Judge, Sangrur, against each other and both are pending in the court of Additional District Judge, Sangrur,(Punjab).
29. It was only with the express consent of the respondent that the applicant firm was using the trade mark
“
BAWA /
BAWA FEED”, till such period, the respondent was its partner as the said trade marks always vested for all intents & purposes with the respondent herein and the respondent had never assigned / transferred the same to the applicant in any manner.
30. The respondent further submitted that he never carried on similar nature of business during the period, when he was active partner of the applicant firm.
31. The respondent further stated that at the time of joining hands in the said partnership firm with the applicant and Mr. Raj Kumar the rights of the said trade marks were always with the respondent herein. The trade mark does not become the property of the firm M/s Shree Durga Industries by virtue of respondent joining the partnership business as a partner. The respondent had never assigned or transferred the rights of the said trade marks in the name of the firm or to the applicant Shri. Darshan Kumar.
32. It is false on part of the applicant to allege that the respondent is bound by terms & conditions of the dissolution deed dated 22/03/2010. So far as the alleged assignment / transfer and relinquishment of the said trade marks are concerned, the respondent never gave any consent for the same at any point of time.
33. On completion of the pleadings, the matter was called for hearing.
The learned counsel for the applicant and respondent had presented their respective arguments before the Board.

10
34. The Counsel for the applicant contended that the applicant Shri
Darshan Kumar, had formed M/s Shree Durga Industries on 19 th
April, 2004 with three partners, namely, Shri Darshan Kumar, Shri. Raj Kumar and Shri.
Ranjit Kumar Sharma and the said partnership firm had used trade mark
“BAWA/BAWA FEED”
openly and exclusively for cattle feed goods.
35. Amongst all partners Shri Ranjit Kumar Sharma, the respondent herein was comparatively more educated than the other remaining partners and therefore the respondent was looking after all the business, official transactions of the partnership firm.
36. In the year 2006, one of the partner Shri Raj Kumar sought retirement from the partnership firm. Subsequently, a dissolution deed was executed between Shri Raj Kumar and the other two partners. The other two partners namely Shri Darshan Kumar, applicant herein and Shri Ranjit Kumar respondent herein entered into a partnership agreement in the year 2006 to continue old partnership business under the same of name M/s Shree Durga
Industries.
37. From 2004 to 2010, both the trade marks “BAWA/BAWA FEED” was continuously used by the partnership firm M/s Shree Durga Industries and further Shri Ranjit Kumar continued to look after the business interests of the firm.
38. But in the year 2010, a dissolution deed was executed between the two partners namely Shri Darshan Kumar, applicant and Shri Ranjit Kumar, respondent herein. The respondent had allowed the applicant Shri Darshan
Kumar to carry on the business of M/s Shree Durga Industries as a proprietorship firm; therefore the applicant took over the business of erstwhile partnership business.

11
39. The applicant and respondent further entered into an agreement after dissolution of the partnership in the year 2010. As per said agreement the applicant paid consideration to the respondent during the dissolution of the partnership.
40. During the course of business of M/s Shree Durga Industries, the applicant came to know that Shri Ranjit Kumar had registered the trade mark
No. 1310453 in class 31 and another trade mark No. 1310454 in class 35 in his own name.
41. The applicant further came to know that the said trade mark applications were filed on 22 nd
September 2004, without the knowledge of the applicant herein. The respondent herein as one of the partner was looking after the business during the period from 1 st
April 2004 to 1 st
April
2010.
42. The applicant counsel further contended that none of the partners were having independent business except the partnership business.
43. The trade mark applications were registered with the address of the partnership business at Imamgarh Road, Malerkotla. After dissolution of partnership firm, the respondent had himself signed an assignment deed in favour of the applicant thereby assigning the trade mark “ BAWA/BAWA
FEED ” in favour of the applicant herein.
44. In view of execution of the said assignment deed dated 11 th
May 2010, the applicant had filed a request on Form TM 24 before the Trade Mark
Registry and the said TM-24 application is pending.

12
45. It is further submitted that the respondent knew that both impugned trade marks in question “BAWA/BAWA FEED” were only used by the partnership firm during the 19 th
April 2004 to 1 st
April 2010. Therefore, only partnership firm had right in the trade marks. But the respondent clandestinely registered the trade marks in class 31 and 35 respectively in his own individual name without the knowledge of the applicant.
46. The applicant had filed a civil case against the respondent and the respondent has also filed a civil case against the applicant and both the civil cases are pending.
47. It is also submitted that the exclusive right in the trade mark
“ BAWA/BAWA FEED” is with the partnership firm since the year 2004. The respondent does not have any exclusive right in the same. The impugned registration of the impugned trade marks was obtained by perpetuating fraud and concealing material facts. The respondent was aware of the fact that there was no individual proprietor to the said trade mark, except the partnership firm M/s Shree Durga Industries.
48. Though the respondent has claimed use from the 1 st
April 2001 but has failed to show any bonafide use of the trade mark from the 1 st
April, 2001 to 1 st
April, 2004. From the records, it appears that the applicant ’s firm was only using the trade mark from the year 2004 and not from the year 2001 as claimed by the respondent. The respondent as a partner was using these trade marks in the name of the partnership firm M/s Shree Durga Industries.
49. It is submitted that the respondent did not disclose to the other partner about the filing of trade mark application in his own name. The respondent had concealed this fact from the other partner.

13
50. The Counsel for the applicant relied on Section 14 of the Partnership
Act, 1932 as mentioned hereunder:
“14. The property of the firm.
—Subject to contract between the partners, the property of the firm includes all property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase or otherwise, by or for the firm, or for the purposes and in the course of business of the firm, and includes also the goodwill of the business.
Unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm ”.
51. The applicant
’s counsel further emphasized on the balance sheet document submitted by applicant herein, where the entry of Rs.10,000/- was shown in as assets in the books of account against the entries of two trade marks.
52. The counsel further stated that the money for the registration of the trade marks had been spent in the course of partnership business and as per section 14 of the Partnership Act, 1932 the respondent does not have exclusive rights over the trade marks registered in class 31 and 35.
53. The Judgments relied on by the counsel for the applicant is as under: i) A.I.R.1952 Punjab 284 Weston C.J. and Harnam Singh J, Debi
Parshad- Vs. Jai Ram Dass and another -- “that anything bought in the name of one partner and paid for by the firm out of the profits of the partnership business is partnership property unle ss a contrary intention appears”. ii) 93 (2001) Delhi Law Times 647, Harmohan Singh
– Vs.
Gurbax singh
– The Defendant has surrendered his rights and interests in various aspects of partnership firm in favour of plaintiff as per the deed of dissolution .
– These assets and rights include ‘goodwill and any other right(s)’ - This would also

14 include right in trade mark of partnership firm as well.
Therefore, it is to be inferred that the defendant had surrendered all his rights after dissolution and the defendant had no right in the trade mark. iii) 2007 (35) PTC 365 (Del.), Harsh Vardhan Rastogi
–Vs.
Championship Publications
–“Both the plaintiff and defendants are real brothers, plaintiff relied on dissolution deed of the year
1994
– Suit filed in the year 1997 - Defendant has failed to show any document on record that the defendant was using the trade mark ‘Champion’ between 1994-1997 – Defendant was restrained from using the mark ‘Champion’. iv) C.M 14043 / 2011, C.M. No 15228/2011 in L.P.A 609/2011 of
Delhi High Court - Bioherbs pharma Vs cattle Remedies
(Unreported) - On dissolution of the partnership firm, the continuing partners took over the assets and liabilities. The retired partner opposed the application for registration of the trade mark which was dismissed and the same was confirmed by the Division Bench of the Delhi High Court. Therefore, it was held that the trade mark is an asset. v) M.P.No.176/2012 in OA/12/2012/TM/DEL, Rashid Bhai vs.
Babu Bhai – Dissolution deed is itself an assignment of the trade mark. If that be so, the outgoing partner does not have any right in the assets of the firm after the dissolution of the firm. vi) Manu/TN 0089/1957, B. S Monnappa Vs. B monnappa and ors.
If the original registration was obtained by fraud, concealment of facts and which did not confer on him any right under the Act, the registration be directed to be expunged. vii) AIR-1966 SC 1300 (v 53 c 251), Addanki Narayanappa and another Vs. Bhaskara Krishnappa (dead) and thereafter his heirs and others –The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property.

15
Once that is done whatever is brought in would cease to be the exclusive property of the person who brought it in.
54. In reply, the respondent counsel contended that the respondent conceived, coined and adopted the trade mark in the year 2001 and was continuously using the same without any interruption and the respondent on his own effort made it popular and reputed before commencement of the said
Partnership.
55. In the year 2001, the respondent ’s sale of the goods bearing the trade mark was not up to the mark, wherein the unit could not be supplied to various Government departments. Hence the record of the unit could not be placed from the year 2001.
56. In the year 2004, the respondent met the applicant Shri Darshan
Kumar, who inspired the respondent herein to start partnership business jointly and the respondent fell prey to the applicant inducement and entered into partnership business in the month of April 2004.
57. During the course of the partnership business, the applicant knew the use of the trade marks of the respondent as the said trade marks were already in existence, even before commencement of the partnership business.
58. It was further submitted that it was within the knowledge of the applicant that the respondent filed application for registration of trade mark in his own na me, by virtue of the respondent’s use of the trade marks.
Therefore, the respondent obtained registration of the trade mark under
No.1310453 in class 31 for the cattle feed and poultry feed and another application 1310454 in class 35 for service, advertising, marketing relating to cattle feed and poultry feed in his own name.

16
59. The counsel for the respondent submitted that the place where the respondent was residing was a very remote place, which did not have a post office and therefore the firm address had been mentioned in the application for registration of the trade mark.
60. It was further submitted that the respondent had never signed any assignment deed or relinquished his rights in favour of the applicant in reference to impugned trade mark or trade marks. The respondent has already disputed the assignment deed of the applicant herein.
61. The Learned Counsel for the respondent relied on the judgments as under: i)
ii) iii) iv)
AIR 1994 SC 853 -- S.P. Chengalvaraya Naidu vs. Jagannath
- If someone withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.
AIR 1976 SC 2400 -- Niranjan Kumar and ors. Vs. Dhyan
Singh and Anr — The documents relied on ought to be produced to prove the case. In this case on hand, though the applicant has relied on 2007 partnership deed, has not produced the same.
AIR 2002 ANDHRA PRADESH 389 -- Jai Narayan Mishra and others, Vs. Hashmathunnisa Begum and others -- The property belonging to a person in the absence of an agreement to the contrary does not become the property of the partnership merely because it is used for the business of the partnership. It would become property of the partnership only if there is an agreement, express or implied that the property under the agreement of partnership to be treated as the property of the partnership.
AIR 1965 PATNA 144 -- Sudhansu Kanta Vs. Mahindra Nath
-- (b) Partnership Act (1932) S. 14 - Though no written document or registered instrument is necessary, there must be

17 evidence that such property was originally brought into stock of firm
– Persons may be mere co-owners of property and may yet be partners in the profit made from its use – Evidence of mere user of property by firm for its business does not make it partnership property: v) vi) vii) viii) ix)
1971 (1) SCC 276 -- Sohan Lal Naraindas
– Vs. Laxmidas
Radhunath Gadit -The intention of the parties is drawn from the terms of the agreement. The description by the parties may be evidence of the intention but is not decisive.
1969 (3) SCC SSS -- Arjun Kanoji Tankar –Vs.Santaram
Kanoji Tankar – We are accordingly of the view that the courts below were right in holding that the business of the
Hindmata Printing Press since the commencement in the year 1937 was the exclusive business of the plaintiff till he admitted the defendant as a partner in the year 1953. It must inevitably follow that all the assets of the business belonged to the plaintiff and the defendant had no interest therein.
AIR 1988 KERALA 128, Jaylakshmi, vs. Shanmugham and others – Property belonging to the partners or to one of them, does not become the property of the firm merely by being used for the purpose of the business. Rights depends upon the terms of the agreement of partnership. It will become so only if the partners show an intention to make it so. There must be an agreement express or implied that the property is treated as partnership property.
2001 SCR 217 -- Shashi Kapila Vs. R.P. Aswin -- A partnership firm is an association of persons. But in spite of that unity between themselves, every partner can have his own separate existence from the firm. Any right which a partner has over any property, other than the partnership property would remain as his individual asset. The mere fact that the particular person has chosen to include himself as a partner of a firm will not result in incorporation of all his individual properties as the assets of the partnership.
FAO (OS) 1 of 2010 and C.M. No. 51 / 2010 Wheels India Vs.
Nirmal singh -- The non-disclosure or concealment of

18 material facts disentitles a party to any relief more so the discretionary relief of injunction
62. In the rejoinder, the counsel for the applicant has submitted that
Section 14 of the Partnership Act 1932, clearly stipulates that “all property and rights and interests in property as originally brought into the stock of the firm or acquired by purchase or otherwise or for the firm for the purpose and in the course of business of the firm and includes also the goodwill of the business unless the contrary intention appears, property and rights and interests in property acquired with money belonging to the firm are deemed to have been acquired for the firm.”
63. In the instant case, the registration of application No. 1310453 in class
31 and application No. 1310454 in class 35 were applied on 22 nd
September
2004, when the respondent was working as partner in the partnership firm business; the respondent has mentioned the address of the partnership business as his business address in the trade mark applications as address proof. Therefore, these registrations were basically applied for the partnership firm and during the course of partnership business. As such, the respondent does not have any rightful claim or ownership over the said registrations.
64. The applicant and the respondent continued to remain as partners till the dissolution of the partnership and during course of the partnership firm business, none of the partners were having any other independent business except the partnership business.
65. The applicant counsel further invited our attention to the documents annexed at page No.95 (G) schedule (F) of application relating to profit and loss account indicating fixed assets, wherein the entry related to trade mark registration have been shown as fixed assets in the balance sheet with the

19 value of Rs.10,000/- for two trade mark applications with the claim of deprecation of 25% in the year 2005.
66. The applicant counsel further emphasized that the respondent was also given financial compensation in terms of agreement dated 22 nd
March
2010 at page no 315 to 321 of the respondent documents and in furtherance to the agreement against the receipt of consideration, the respondent has also signed an assignment deed in favour of the applicant thereby assigning all rights of both the registrations to the applicant and the applicant filed TM-
24 which is pending before the Trade Mark office.
67. The applicant counsel invited our attention to page no. 108 of the dissolution deed dated 1 st
April 2010 of the applicant document and to the
Para No 5 which enumerates that “outgoing party the respondent releases disclaims, relinquishes all his rights and interests in the partnership property out standings, privilege, trade mark and trade name etc. if any in favour of the applicant.
”
68. In our view the Para no. 5 at page no. 108 of the dissolution deed dated 1 st
April 2010 clearly states that outgoing partner relinquishes, releases, disclaims all rights in the trade marks and though the dissolution deed does not describe the names of the trade marks but it importantly mentions that outgoing partner relinquishes, releases and disclaims his all rights in the trade marks and this dissolution deed is reinforced by the subsequent assignment deed.
69. We have considered the arguments of both the counsel, the pleadings, the documents submitted by both the parties and the judgments relied by both the counsel. The judgments relied by both the parties are on mostly related to the Partnership Act 1932 and induction of assets by the

20 partners into the partnership and hence, the judgments need not be gone into in deciding the issue involved in this case. The pertinent question that arises before us is “Where a partner claims to be proprietor of trade marks and the same is being used for partnership business, whether ownership of such trade marks will rests with partner or with the partnership.
”
70. Firstly, we will look at the documents submitted by the applicant.
While going through the documents of the applicant, it is seen that the applicant has filed various bill invoices showing usage of the trade marks by the partnership firm. The applicant has also filed few more documents such as, the balance sheet of the firm to claim ownership of the impugned trade marks. In our view, the various bill invoices and balance sheet indeed show the usage of the impugned trade marks by the partnership firm.
71. On going through the contents of the partnership deed entered between the parties, in our view, the contents of the partnership deed does not support the contention of the respondent that the respondent has inducted the impugned trade marks
“BAWA/BAWA FEED ” as a stock into the partnership firm, even the pleadings and documents failed to support the contentions of the respondent.
72. From the document annexed at page No.95 (G) schedule (F) of the application it is seen that the trade mark registration fee was shown as fixed assets having value of Rs.10,000/in the schedule ‘F’ of the balance sheet of the year 2005. Co-incidentally, even the applications for registration of the trade marks were filed by the respondent in the year 2005 and further the respondent has also admitted in his pleadings that he was not carrying out any other business other than partnership business.

21
73. The trade marks registration fee, which has been shown as part of fixed assets in the column of the balance sheet documents creates doubt on the contentions raised by the respondent, The inclusion of trade mark registration applications fee as part of the fixed asset in the balance sheet of the year 2005, clearly shows that the applied trade marks were part and parcel of the partnership firm and therefore the fee spent on trade mark applications was incorporated as fixed asset in the balance sheet of the partnership firm.
74. After going through the documents and submissions made at length by both the parties, we are of the considered view that the impugned marks
“BAWA / BAWA FEED” were used only by the partnership firm, during the course of its business between the years 2004 and 2010 and the claim of the respondent that he has conceived, adopted and had been using impugned trade marks much before of joining as partner of the firm is a misstatement to claim as proprietor of the impugned trade marks and does not hold credence.
75. In our considered view, the respondent has failed to prove that he has conceived and adopted, or proprietor of the impugned trade mark before the commencement of the partnership business as well as the use of the impugned trade marks before the commencement of the partnership business.
76. In view of the above, the registration obtained by the respondent for the impugned marks “BAWA /BAWA FEED” under the application No.
1310453 in class 31 and other application No.1310454 in class 35 is wrong and the registration so granted to the respondent is in total contravention of the section 18 (1) of the Act.
77. Having made these observations, we think it appropriate, in the interest of justice, to allow the rectification application of the applicant herein

22 by cancelling both impugned trade marks. We, therefore, allow both the rectification applications ORA/91/2012/TM/DEL and ORA/102 /2012/TM/DEL of the applicant herein with a direction to the Registrar of Trade Marks to cancel the registration granted to the respondent vide application No.
1310453 in class 31 and application No. 1310454 in class 35 respectively.
The connected M.P. Nos.87 of 2012 in ORA/91/2012/TM/DEL and M.P. Nos.
123 of 2012, 353 of 2012 and 182 of 2013 in ORA/102/2012/TM/DEL are closed. There shall be no order as to costs.
(SANJEEV KUMAR CHASWAL)
TECHNICAL MEMBER
(S. USHA)
VICE-CHAIRMAN
Reportable : YES / NO