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Judgment
Prabha Sridevan, J
Counsel for the applicant is present. None appeared on behalf of the respondent. The Rectification Application has been filed for rectifying the
trade mark 'KE' Logo under Trade Mark No. 499338 in class 11 of the Fourth Schedule to the Trade & Merchandise Marks Act, 1958. According to
the applicant, the respondent is a licensee and the use of the logo is permissible use. According to the applicant, the Technical Collaboration
Agreement provides that the respondent will have no right to use the mark after termination of the agreement. Even on the last occasion, there was no
representation on behalf of the respondent. Notice has also been served for the date of hearing.
2 . The learned counsel for the applicant has produced the judgment of the Hon'ble Delhi High Court dated 18.07.2011 in C.S (OS). No. 1144/2001
M/s. K.E. Burgmann A/S Vs. H.N. Shah & Ors. This suit is for injunction restraining the respondent from representing that they are the registered
proprietors of the KE Logo/Mark. In fact this judgment is reported in 2011 (47) PTC 354 (Del) - K.E. Burgmann A/S Vs. H.N. Shah & Ors.
The suit was decreed
ORDER -A decree of perpetual injunction is hereby passed in favour of the plaintiffs and against defendant No. 2 restraining the defendant No. 2
from using the trade mark 'KE' logo either on it stationery such as brochures, letterheads, invoices, visiting cards etc. or on the products manufactured
and/or sold by it in India. Defendant No. 2 is also restrained from representing that it is the proprietor of the trademark 'KE' logo. The facts and
circumstances of the case do not warrant any order as to costs against defendant No. 2. The suit against defendant No. 1 is dismissed with no order
as to costs. Decree sheet be drawn accordingly.
According to the learned counsel no appeal has been filed against this. He also submitted that the respondent's use being permissive, he can no longer
was it.
This is the reason why there was no representation on behalf of the respondent on the last date of hearing ie. on 01.12.2011. Along with the
rectification application, an applicant has filed Exhibit 'A' which is Joint Venture Agreement between the applicant and the Director of Harley &
Company. Exhibit 'B' Joint Venture Agreement between the applicant and the Director of Harley & Company under which the respondent No. 1
incorporated. Exhibit 'C' which is the Technical Collaboration Agreement between the applicant and respondent. Exhibit 'D' is a facsimile of the trade
mark. Exhibit 'E' is a Registration Certificate in favour of the respondent. Exhibit 'G' is a Memorandum of Compromise by which the plaintiffs before
the Hon'ble Madras High Court purchase the Equity Shares of the applicant from the respondent company. Clause 6 of the memo of compromise
shows that the nominees of the applicant to the Board of Directors of the respondent company have given their letters of resignation. There is a No
Objection Certificate given by the respondent to the applicant setting up business in India. In view of these documents, it is clear that the permission to
use the mark has been withdrawn and therefore TRA/62/2003/TM/MUM must be allowed and the mark KE Logo stands removed.