Kerala High Court
Salish Sham Viswan vs Singing Artists Association Kerala on 16 February, 2024
Author: Devan Ramachandran
Bench: Devan Ramachandran
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
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
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
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
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
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
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 2 nd respondent,
WP(C) NO. 6301 OF 2023
while the afore exercise is completed.
Sd/-
DEVAN RAMACHANDRAN
JUDGE
akv
WP(C) NO. 6301 OF 2023
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
