Kerala High Court: N. Nagresh, J., heard the instant petition wherein the petitioner had approached this Court seeking to set aside rejection letter and to direct the respondent-Asst. Registrar of Companies to process his application for incorporation of LLP without raising any dispute on the proposed name “Reef Wellness and Excellence LLP”.
The petitioner submitted that he had proposed to incorporate a Limited Liability Partnership (LLP) for doing business in Recreation and Wellness Centres, in the name and style “Reef Wellness and Excellence LLP”. Though, he had applied for reserving the proposed name and the name was reserved for the petitioner for three months, he could not make an application for registration of LLP within three months. However, the petitioner submitted an application for incorporation of LLP in the said name on 23-01-2020. Defects in the application were noted by the respondents in installments and the petitioner was made to file fresh applications time and again. However, in none of the mails, the respondent did point out that the proposed name of the LLP was not available. Furthermore, in mail pointing out certain defects, the respondents even stated that the proposed name can be given to the petitioner. Thereafter, the respondent pointed out only one defect relating to Subscribers Sheet.
However, in the end the respondent rejected the application stating that the proposed name of LLP could not be allowed as it is an existing trade mark.
It is evident that an LLP with identical or resembling name is not permitted in view of the regulations made in the Trade Marks Act, 1999. Section 28 of the Act grants an exclusive right to use a trade mark to a registered proprietor of a trade mark only in relation to the goods or services in respect of which the trade mark is registered. Noticeably, the word REEF is now included in the names of entities dealing in Class 05 goods in Fourth Schedule to Trade Marks Rules, 2002. The petitioner had proposed to deal in services and his activity may fall under Classes 44, 35 or 41 which was evident from communication of the respondents.
The Supreme Court had considered the issue of registering similar trade name by different entities for difference classes of products, in Nandhini Delux v. Karnataka Co-operative Milk Producers Federation Limited, AIR 2018 SC 3516, wherein it had held that as the products of the appellant and respondents fall in different classes, there is no question of confusion or deception in the matter of Trade Mark. The Supreme Court stated that,
“If a trader or manufacturer actually trades in or manufactures only one or some of the articles coming under a broad classification and such trader or manufacturer has no bonafide intention to trade in or manufacture other goods or articles which also fall under the said broad classification, such trader or manufacturer should not be permitted to enjoy monopoly in respect of all the articles which may come under the broad classification and by that process preclude the other traders or manufacturers from getting registration of separate and distinct goods which may also be grouped under the broad classification.”
The registration of word mark already granted by the respondents were “REEFLEC’, REEF”, “REEFIT FORTE”, “REEFER (HEMATANIC)” which were all for products falling under Class 05. While the petitioner sought the name “Reef Wellness and Excellence LLP”, not for any product but for a service, and that too which did not fall under Class 05.
Hence, the name proposed by the petitioner could not be said to be identical or deceptively similar. The respondents were not justified in rejecting the application of the petitioner for the reason that the proposed name include the work “REEF” which was existing trade mark under Class 05. Accordingly, the writ petition was allowed and the order of the respondent was set aside. The respondent was directed to incorporate the LLP without raising any dispute on the name proposed by the petitioner.
[Kunhi Muhammed Etayattil v. Registrar of Companies, WP(C). No.3057 of 2021, decided on 07-04-2021]
Kamini Sharma, Editorial Assistant has put this report together
Appearance before the Court by:
For the Petitioner: Adv. M.P.Shameem Ahamed and Adv. Cyriac Tom
For the Respondents: Adv. P.Vijayakumar and Adv. P. R. Ajith Kumar