When a person is not entitled to use family name of his wife as trademark of his business?

  The main contention advanced by the learned counsel for

the appellant is that 'Panikkassery' being the family name of the wife of

the defendant, the use of the said name by the defendant will not

amount to infringement. Section 35 of the Trade Marks Act relied on by

the defendant in support of his contention reads thus :

                     "Section 35. Saving for use of name, address or description of

              goods or services--Nothing in this Act shall entitle the proprietor or a

              registered user of a registered trade mark to interfere with any bona fide

              use by a person of his own name or that of his place of business, or of the

              name, or of the name of the place of business, of any of his predecessors

              in business, or the use by any person of any bona fide description of the

              character or quality of his goods or services."

Section 35 protects bona fide use by a person of his own name or that of

his place of business, or of the name, or of the name of the place of

business, of any of his predecessors in business. It is evident from

Section 35 that the said Section permits only bona fide use of the name

referred to in the Section. Bona fide use means honest use by a person

without any intention to deceive anybody or without any intention to

make use the good will of another. In the instant case, 'Panikkassery' is

the family name of the wife of the defendant. The said name is not a

name contemplated under Section 35 of the Trade Marks Act and at any

rate, the said name being the family name of the wife of the defendant, it

is difficult to hold that the use of the said name by the defendant is bona

fide and without any intention to make use the good will of the plaintiff.

The defendant is, therefore, not entitled to the protection under Section

35 of the Trade Marks Act.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                                      PRESENT:

     THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

             THURSDAY, THE 19TH DAY OF MARCH 2015

                          FAO.No. 292 of 2014 

            SHOUKKATH.J, 

Vs

            M.MUHAMMED NOUSHAD,

           

Citation;AIR 2016(NOC)134 Kerala

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Whether daughters can be denied share in coparcenary property on ground that cash and jewellery are given to them?

Learned Counsel for the appellants argued that Sannamadaiah purchased a site in the name of the third plaintiff and gave gold and silver jewellery as well as cash to the first and second plaintiffs and therefore plaintiffs cannot claim any share in the suit properties. Admittedly, the defendants have not stepped into the witness-box to substantiate their contention, nor is there any plea in the written statement to that effect. Even assuming that Sannamadaiah had purchased a site in the name of third plaintiff and given jewellery and cash to other plaintiffs, the same cannot take away their legal right as daughters to claim a share in the co-parcenary properties by virtue of Section 6 read with Section 8 of Hindu Succession Act. Point No. 4 is therefore answered in the negative.

 Equivalent Citation: AIR2016Kant4, 2015(4)KCCR3091

IN THE HIGH COURT OF KARNATAKA

Regular First Appeal No. 58 of 2014

Decided On: 07.09.2015

 Lokamani and Ors.  Vs. Mahadevamma and Ors.

Hon'ble Judges/Coram:N. Kumar and G. Narendra, JJ.

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