Jai Narain Vyas University

Jodhpur

Session 2021 - 22

Faculty Of Law

B.B.A. LL.B.VIII Semester

Subject Name : - Intellectual Property Law

Topic : - India electric works ltd re (1944) 44 CWN 42S

Submitted To: - Dr. Nityash Solanki Submitted By : - Himanshu Soni

Roll Number :- 19BBL50010

 Acknowledgement

I would like to express my special thanks of gratitude to my teacher Dr. Nityash Solanki. Proffessors as
well as our Dean Dr.Chandanbala who gave me the golden opportunity to do this wonderful project on the
topic, Intellectual property case law which also helped me in doing a lot of Research and I came to know
about so many new things I am really thankful to them.

Secondly i would also like to thank my parents and friends who helped me a lot in finalizing this project
within the limited time frame.

Himanshu Soni
 India electric works ltd re (1944) 44 CWN 42S

Facts of the case

The India Electric Works Ltd., applied under Section 14, Trade Marks Act, 1940 to the Registrar of Trade
Marks for registration of the word "India" as their trade mark of an electric fan. The Registrar refused the
application on 26-9-1944. Pursuant to Section 76(1) of the Act the company presented an appeal to this
Court against the Registrar's refusal. It was heard by McNair J. and by whom it was dismissed on 8-1-1945.
The company now prefers this appeal against the learned Judge's dismissal. The Registrar of Trade Marks is
the respondent. In form and substance it is an appeal from a single Judge to a Division Bench of this Court
which, for convenience, I will call an inter-court appeal. Mr. S.B. Sinha, on behalf of the Registrar, raised a
preliminary objection to the competency of the appeal on the grounds that an appeal to the High Court
under Section 76(1) against the Registrar's refusal to register a trademark is final, and no further appeal,
therefore, lies and, in any event, there is no right of appeal to a Division Bench from the decision given in an
appeal under Section 76(1) by a single Judge of this Court.

Observation on behalf of the Appellant :

That the counsel on behalf of Appellant Mr. N.C. Chatterjee, contended that in disposing of the appeal of
single judge bench exercised under Original or Appellate Civil Jurisdiction, in which course his appeal lies
from his proceeding to further appeal to division bench of this court under clause 15 of its latter patent, it is
further urged that court have the jurisdiction to deal with the matters relating to trademark’s registration or
including right to appeal. For these reason this present appeal is maintainable & competent.
That the above urged clause 15 for right of appeal provides as :-
An appeal shall to the said High Court of Judicature at Fort William in Bengal from the Judgment of one
Judge of the said High Court pursuant to Section 1081, Government of India Act 1915.
Further arguing on behalf of company that judge has exercised the Court's Ordinary Original Civil
Jurisdiction in disposing of cases in that list as the Judge in charge of that list. That the, Rule 74(b) expressly
confers a right of appeal to a Division Bench of this Court against the decision of the Judge disposing of
Trade Mark appeals.
That the proceedings for disposing is initiated with ordinary original civil jurisdiction in high court, if that
the case be, an appeal lies from, a single Judge to a Division Bench in respect of such proceedings.
The rules made under the Act cannot give more than is given by the Act itself, Unless there is such right
under the ordinary appellate jurisdiction of the Court, pursuant to Clause 15 of the Charter (which question
is late discussed), no such right exists and is not conferred by Rule 74(b).

1
Reference no 1
 The relevant part of Clause 15 has previously been stated and repetition is unnecessary. Other material
provisions are:
Clause 16 - The High Court shall be a Court of appeal from the civil Courts of Bengal and from all other Courts
subject to its superintendence and shall exercise appellate jurisdiction in such cases as are subject to appeal to the said
High Court by virtue of any laws' or regulations now in force.
Clause 37 - It shall be lawful for the said High Court to make rules for the purpose of regulating all proceedings in civil
cases which may be brought before the said High Court.
Clause 44 - The provisions of the Letters Patent are subject to the legislative powers of the Governor-General in
Legislative Council.

That the jurisdiction &power as to right to appeal from judgment of single bench to division bench all
depends clause 15 as provides above.
That the appellant present the case to be clearly specified by law & rules whereby accordingly company
applied for registration of the “India” as their trade mark in respect of electric fans and regulators
manufactured and sold by them for a considerable number of years to show the distinctiveness of name &
use of it as to company’s initials. That such application filled u/s 14 Trade Marks Act, 1940 which specifies
rules as to what after rejection or conditional acceptance right to appeal exsists.

It is well settled that the right of appeal is the creation of Statute. As observed by Bramwell L.J. in An
appeal does not exist in the nature of things : a right to appeal from any decision of any tribunal must
be given by express enactment.2
Observation on the behalf of the Respondent :
That the contention made by counsel of the respondent, power of court’s making rule as stated u/s 76(1)
confers one right of appeal & not a second appeal. That the appeal under Clause 15 does not lie when the
judgment is not pursuant to Section 108.
That the respondent argued Trade Marks Act, 1940 the rules made under Section 77 are not consistent with
the rules under Section 108 of TMA3 Act, 1999. That the Section 76(1) is pursuant to rules made under
Section 77 of TMA, 1940, is not a disposal in accordance with rule made under Section 108 pursuant to
clause 15 where appeal in judgment is not pursuant to Section 108 & there is no right of appeal from single
judge bench to division bench with respect to appeal against trade mark.
That the contention urged by respondent McNair J. did not exercise the Ordinary Original Civil Jurisdiction
of this court when he dispose off the appeal for refusal of registrar of Trade Mark for company. The Court
exercises its Ordinary Original Civil Jurisdiction with respect to proceedings, e.g., under Sections 10, 38, 39,
46 and 69 which are initiated in this High Court pursuant to the provisions of that Act.
That the learned Judge's decision is not a judgment within Clause 15, Letters Patent; and there is no right of
appeal from his decision to a Division Bench of this Court. Here counsel for respondent raise a preliminary
objection and this appeal should be dismissed, this is all in consideration with section 77 of the Trade Marks
Act, 1940 while doing this the appeal made under this bench is not maintainable or competent.
That the Section 76 of TMA says only about the appeal from the decision of registrar to high court having its
jurisdiction & the act goes on to first appeal further remains silent as to further appeal from the decision of
2
1878) 3 Q.B.D. 1 (4) at p. 4
3
Trade Marks Act
 the high court.

That the last question is whether appeal lies under the Code of Civil Procedure. A perusal of the relevant
provisions of the Code will make it clear, as observed by Sir Lawrence Jenkins C.J. in Debendra Nath v.
Bibudhendra4 that the Code makes no provision for an appeal within the High Court from the judgment of a
single Judge of the High Court. Indeed, counsel for the appellant does not claim any right of appeal under
the Code.

Courts Judgment :

That the clause 15 shall not apply of latter patent and as per amendment from time to time section 76 says in
pursuant with section 77 rules that no further appeal shall remain silent which means cannot be placed.

As a result, the appeals of the Appellant were dismissed.

4
('16) A.I.R. 1916 Cal. 973
References

1. Section 108 - Penalty for improperly describing a place of business as connected with the Trade Marks
Office.—If any person uses on his place of business, or on any document issued by him, or otherwise,
words which would reasonably lead to the belief that his place of business is, or is officially connected
with, the Trade Marks Office, he shall be punishable with imprisonment for a term which may extend to
two years, or with fine, or with both.