"Hebare", which was a registered mark of Ramesh. The suit {Waman Vs. Ramesh 2010 (42) PTC 35(Bom.)} revolves around the dispute between two brothers, using their surname "Hebare" as trademarks in their respective business. An appeal was filed against the order restricting Waman from using the trademark
Ramesh stating that he applied for registration of the trademark "Hebare" in the year 2002 learnt of an application by Dayaldas and Company for registration of the same mark, during pendency of his application. After coming to know about this development, he approached the proprietor of Dayaldas and Company and informed the proprietor that he had been using the mark "Hebare" since 20 years and after negotiation purchased the said trademark from Dayaldas and Sons and entering into a deed of assignment.
Waman, had filed a written statement stating that he was selling his products under the registered name and style "Amit" and "Ajinkya" and his surname "Hebare" as well. Waman pleaded that there was no deceptive similarity between the products of the two parties and as the assignment deed is not registered with the Registrar of Trademarks, there was no passing off. Another crucial contention made by Waman was that unless an entry was made in the Registrar of Trademarks in accordance with the Trademarks Act, the document or the instrument could not be admitted in evidence.
The counsel for Ramesh submitted that the assignment comes into effect immediately and he emphasized that the words in Section 45(1) made it clear that Ramesh was entitled to assignment. Regarding the same, the court also opined that the assignee acquires title to the registered trademark immediately on assignment in writing.
The deed of dissolution stated that Ramesh Hebare had taken over the business of the firm as a running concern with assets and liabilities of the firm and accounts of the other party i.e. Waman have been fully settled by full payment including the share of profits. Thus the Court agreed to the fact that the deed made it clear that goodwill and trade name were transferred to Ramesh and he was thereby authorized to use the trade name "M/s Hebare & Sons". The Court took into consideration two main instruments, being the deed of assignment and the deed of dissolution. As there was no dispute regarding them, it was apparent that the claims of Ramesh were bonafide and prima facie a strong case of opposition was established.
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