In a significant ruling allowing relief to the petitioners, the Kerala High Court held that the Registrar of Company not justified in declining incorporation of LLP on the ground of similarity of name since it was rejected without application of mind, not considering the fact that the name proposed by the petitioner cannot be said to be identical or deceptively similar. While allowing the petitioner to incorporate LLP with the proposed name, the Kerala High Court criticized the government officials for blindly depending on the system without applying their mind.
The Petitioner, Kunhi Muhammed Etayattil is challenging order by which, the application made by the Petitioner, for the incorporation of a Limited Liability Partnership (LLP) under the name “Reef Wellness & Excellence LLP” has been rejected by the Registrar, on the ground that proposed name includes the word ‘Reef’, which is a trademark under class 5.
However, the petitioner claimed that in an earlier application, the Registrar had expressly approved the name “Reef Wellness & Excellence LLP” twice. “Even under Section 28 of the Trademarks Act, a registration will grant exclusivity only for the class of goods or services in respect of which the trademark is used. In other words, a registration under a particular class does not mean that the said name cannot be used by anyone else for any other class of goods and services,” the petition said.
The petition highlighted the fact that the Section 15 (2)(b) of the LLP Act has to be read down to mean that, the restriction can be made applicable only if the proposed name includes a trademark registered in the same class of goods or services in which the activity of the company is being carried out or is proposed to be carried out.
The Single Judge Bench of Justice N. Nagaresh termed this as a “system-generated harrassment” and was of the opinion that the case of the petitioner in fact stands on a stronger footing.
“The facts of the case disclose a sorry picture of what can be described as a ‘system generated harassment’ aggravated by non application of mind by officials who leave everything to be dealt with by the system, thereby putting the common man to an agonising phase of suffering, where he is condemned to deal with faceless men and machines,” the High Court while expressing the dissatisfaction said.
“The registration of word marks already granted by the respondents are “REEFLEC’, REEF”, “REEFIT FORTE”, “REEFER (HEMATANIC)” which are all for products falling under Class 05,” the Court said.
The court noted that the petitioner seeks the name “Reef Wellness and Excellence LLP”, not for any product but for a service, and that too which does not fall under Class 05.
The court added that the name proposed by the petitioner cannot be said to be identical or deceptively similar. When the petitioner sought for a word name for a service which word name is not identical or deceptively similar to other word names already registered for a different class of products, the respondents are not justified in rejecting the application of the petitioner for the reason that the proposed name include the work “REEF” which is existing trademark under Class 05.
The court held that the respondents are not justified in declining incorporation of LLP as sought for by the petitioner on the ground of similarity of name. The writ petition is therefore allowed.
The court directed the respondent to incorporate the LLP without raising any dispute on the name proposed by the petitioner.
Advocates M.P Shameem Ahamed and Cyriac Tom appeared for the petitioner.
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