Kunhi Muhammed Etayattil Vs. The Asst. Registrar of Companies : Kerala HC’s expresses dismay over the in India

The 10 month long brawl

The case  Kunhi Muhammed Etayattil Vs. The Asst. Registrar of Companies  the High Court of Kerala, purports to a writ petition filed by the petitioner in order to set aside a rejection letter given by the Registrar of Companies, regarding an application for incorporating an LLP, with regards to the name “Reef Wellness and Excellence LLP”. The rejection letter, as contended by the petitioner did not specify any reasons for dispute or non-compliance.

The petitioner intended to incorporate a Limited Liability Partnership for the purposes of doing a recreational and wellness centres business, under the aforesaid name. Therefore, he filed an application on the Ministry of Corporate Affairs website under the RUN-LLP forum, for reserving the name under Rule 18(2) of the LLP Rules, 2008. The said application was approved, and it was stated that the name was available.

Subsequent to receiving this communication, the petitioner filed the FiLLP form for incorporating the Limited Liability Partnership under the name ‘Reef Centre for Wellness and Excellence LLP’. However, this application received a series of objections and was declined time and again for the following reasons:

1. The respondent in his first response to the above application noted: “No Resemblance found, TM Checked u/c (Under Class) 44,35,41 Name can be given.” However, this communication also pointed out some defects and deficiencies in the application,
2. The petitioner rectified the application and resubmitted it, void of all defects.
3. The resubmitted form was again replied to by the respondents asking for an NOC which should be in the name of the person whose name is mentioned on the annexed utility bill.
4. To this the petitioner submitted a clarification that the above requirements have already been met.
5. The respondents again rejected the application and that in the case of proprietorship, NOC should be given on the letterhead duly stamped and signed and further that Business Visa of one of the partners, who is a resident of India, also has to be submitted.
6. The petitioner replied to the same, however owing to inaction by the respondents, he filed a complaint with the Escalation Authority under the Ministry of Corporate Affairs, which without referring to the contentions rejected the complaint.
7. The petitioner again responded to the Authority stating that an OCI Card from an Indian Passport Holder cannot be sought. Pursuant to which, the authority asked him to file a fresh FiLLP form as the maximum number of re-submissions allowed have been exhausted.
8. The fresh FiLLP form was rejected by the respondents stating that the proposed names included the word REEF which is already there in TM under Class 5. The petitioner responded with a clarification that Class 5 dealt with pharmaceuticals whereas this application was under class 35.
9. The petitioner was again asked to resubmit the FiLLP form with the remark, which was subsequently denied, and he made the representation that the name was already reserved by him, though the time limit expired. However, this was again not accepted by the respondents leading to this appeal.

The Issue in  Kunhi Muhammed Etayattil Vs. The Asst. Registrar of Companies  case

Whether the Registrar of Companies was correct on rejecting the application based on an existing trademark in another class of goods and services?

Court’s Opinion

 The above tussle(Kunhi Muhammed Etayattil Vs. The Asst. Registrar of Companies) continued for over 10 months and the High court rightly “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 Hon’ble court was unpleased with the sorry state of affairs and also gave clarification on the law relating to trademarks, while referring to Nandhini Delux v.Karnataka Co-operative Milk Producers Federation Limited. It stated that while the LLP Act read with the Trade Mark Act, 1999 disallow the use of same, similar or identical names, Section 28 of the latter act makes it clear that such exclusive right is limited with the proprietor in relation to the goods and services in respect to which the trademark is registered. Therefore, there is no question of confusion or deception in the matter of Trademark if the products or services fall in distinct and different classes.

The high court directed the respondents to incorporate the LLP without raising any disputes regarding the name.

References

1. Kunhi Muhammed Etayattil Vs. The Asst. Registrar of Companies [1] WP(C). No. 3057 OF 2021(F)
2. Nandhini Delux v. Karnataka Co-operative Milk Producers Federation Limited [AIR 2018 SC 3516]