A trademark application gets filed, examined & published within 72 hours at the Chennai Trademarks Registry: Super Efficiency OR Super Corruption?

Earlier this year, Sumathi had mentioned in passing that a certain trademark application bearing number 2000161 has been published in the trademark journal within a record three days of being filed with the trademark office. She had received this information through an email from one of readers. Those of you familiar with the Trade Mark Registry (TMR) must be aware that getting an application published can take anything between a few months to a few years but never has this happened in three days. At that time we did not give much thought to the matter but recently we received an email from Mr.Balakrishnan, a Coimbatore based IP lawyer who has taken the time and the pains to investigate the matter of TM 2000161 and in the process has exposed the stinking corruption at the Chennai TMR, which only recently witnessed the arrest of a high rankingRegistrar on the charges of massive corruption and disproportionate assets.

 

Mr.Balakrishnan has already filed a complaint with the Central Bureau of Investigation (CBI) and this post is largely based on his preliminary investigation. Let me also clarify that Mr.Balakrishnan is not a party to these proceedings. He just happened to stumble upon this information on our website and decided to investigate a bit further. Before proceeding to the actual content I would like to salute Mr.Balakrishnan for his courage in coming forth with this information. It’s difficult to find lawyers with a spine in this country and it’s extremely heartening to know that we still have some lawyers who hold up the esteem of the entire profession. Let me also clarify that this problem of corruption is limited to only a few rotten apples in the Chennai TMR and not the entire Registry, which I’m sure has its fair share of honest officials.

 

The controversy in question involves 4 trademark applications of which only two are extremely suspicious.

 

I.     The first two trademark applications – ‘601 & ‘796

 

The TM Applicant common to all the 4 TM applications in this case, is a partnership concern based in Chennai, had initially filed two trademark applications, bearing numbers 1705601 and 1795796, on the 1^st of July, 2008 and the 16^th of March, 2009 respectively.

 

The TM Application 1705601 was for the image on the right, along with the words Vicky and the registration was sought only for ‘Paint Brushes’ in Class – 16. This application was published on the 1^st of August, 2010 and promptly opposed by a party based out of Uttar Pradesh.

 

The TM application 1795796 was for the same image as above along with the words Vicky but the registration for this application was sought only for Class 35 for retail services and advertising. This application was initially objected to by the TMR and according to the TMR website, this application is yet to be published in the TMR journal despite the Deputy Registrar ordering its publication in the Journal more than a year ago on the 23^rd of July, 2010. The Deputy Registrar will have to answer as to why his orders are not being carried out by his Office.

 

Both the above applications were filed by the TM Applicant through DePenning and DePenning and are non-controversial but are central to the story because it appears that this failed attempt at registration spurred the TM Applicant to grease a few palms for the expedited route when he filed two new applications in 2010.

 

II.    The latter two trademark applications that are at the heart of the scam – ‘160 & ‘161

 

The real controversy begins with the remaining two TM applications which were filed by the TM Applicant himself i.e. without engaging the services of a lawyer. TM 2000160 was filed on 28^th July, 2010 for the mark ‘Vicky’ in Class 35, along with a TM-63 i.e. an application for an expedited examination report. Similarly TM 2000161 was filed on 28^th July, 2010 by the same applicant for the Trademark ‘Vicky’ but in Class 16. Basically the TM Applicant was trying to get registrations for the same old trademarks which were described earlier in this post. Both trademarks were published on the 1^st of August, 2010 in the TM Journal.

 

According to the TMR website, the Chennai TMR examined both TM ‘160 and TM ‘161 on the very same day that they were filed, at 5:12 PM and 5:15 PM respectively. The reports are available over here and here. As is obvious from both examination reports both examinations were conducted by the same Registrar and similar objections were raised in both reports. The similar objection was the fact that both trademarks were personal names without any distinctive features and that there were already several similar trademarks registered with the same name. In short, it would have been pretty impossible to get both these trademarks registered unless there was overwhelming evidence that they had acquired a distinctive meaning.

According to the official records for both TM ‘160 and TM ‘161, the Chennai TMR conducted oral hearings with the TM Applicants on the 29^th of July, 2010 i.e. just one day after the Examination Reports were generated. The orders are available over here and here.

The purpose of the hearing is to allow the TM Applicant to defend his application against the objections raised in the Examination Report. It seems highly improbable that the Examination Reports which were generated on the 28^th of July, after office hours, could have been delivered to the TM Applicant by the 29^th of July informing him to appear before the Registrar on the very same day with a prepared defence.

 

According to the official records, orders were issued to have both these applications published in the TM Journal for the purpose of inviting possible oppositions. Both applications were subsequently published in the TM Journal, over here and here on the 1^stof August, 2010 i.e. within 3 days of filing of both the applications.

As per the official record, TM ‘160 was registered as a trademark with a certificate being granted in March this year, while TM ‘161 was opposed by the same party which opposed TM 1705601.

 

Those of you familiar with the workings of the TMR, must be aware that even under the expedited process, it can take at least one year at the very minimum to reach the stage of publication. A period of just three days to complete the publication process is an unbelievable timeline without any precedent!!!! Even more surprising is the fact that TM ‘160 got registered in a mere 8 months.

 

The really damaging aspect of this entire case, apart from the expedited three day timeline, was the fabrication and forgery of certain documents that are absolutely crucial to establishing the legitimacy of both trademarks ‘160 and ‘161. It is these forged documents which pretty much nail the guilt of those involved in this highly suspicious transaction:

 

(i)     The forged affidavits: Since the examination reports of both ‘160 and ‘161 had revealed that both the trademarks lacked a distinctive character because of the significant similarity with existing trademarks and also the fact that they reflected a personal name, the TM Applicant was required to prove distinctiveness of his trademarks by providing the Registry with some evidence to this effect. In order to establish such secondary distinctiveness, some TM Applicants file affidavits swearing that their trademarks are distinctive. In the case of TMs ‘160 and ‘161 two affidavits have been filed but it appears that both affidavits are forged.  

 

If you have a look at both affidavits for 2000160 and 2000161, available over here and here it is but obvious that somebody had erased the original application numbers which were printed on the affidavit and written in hand the numbers 2000160 and 2000161.

 

The original affidavit which has been used as a template for the forgery can be accessed over here and was filed by the TM Applicant in response to the examination report generated for TM No. 1795796. Although the entire affidavit has not been made available on the website of the Registry, if you look below the left hand corner of the judicial stamp, you’ll notice the numbers ‘2758/14-7-10’ and the words ‘Vicky Brush Company’. These markings are made by the Stamp Paper Vendor and is indicative of the fact that the stamp paper was sold on the 14^th of July, 2010. These very same markings appear on the forged affidavits for TM Applications ‘160 and ‘161 indicating that they are mere photocopies of the original photocopy. Moreover both the affidavits, bearing the TM numbers for ‘160 and ‘161 are dated the 16^th of July, 2010 despite the fact that the TM numbers ‘160 and ‘161, themselves were generated only on the day of the filing of both applications i.e. the 28^th of July, 2010. The original affidavits for ‘796 were generated on the 16^th of July, 2010 because the TMR had scheduled a hearing for that application on the 21^stof July, 2010.

 

Normally cosmetic changes such as this would not amount to much but this was a sworn affidavit and to make changes such as this to a sworn affidavit falls within the textbook definition of forgery under S. 464 of the Indian Penal Code. This offence carries a jail term of a maximum two years along with a fine. In this case there are two counts of forgery meaning imprisonment for a period of 4 years.

 

It is unlikely that the TM Applicant was involved in this forgery business because he would have no reason to forge his own affidavit, he could have just created a new affidavit. The real culprits are most likely from within the trade mark office since they knew that after the CBI complaint they would have to establish the reason for proceeding with TM ‘160 and TM ‘161 despite the fact that both marks received adverse examination reports. This allegation is obviously not conclusive and needs to be investigated further.

 

(ii)   The orders to publish without any official signature: The second piece of suspicious evidence regarding TM ‘160 and TM ‘161 is the fact that the orders to publish these applications in the TM journal bear no signatures. These orders are available over here and here. In contrast TM ‘796 which was filed by the same TM Applicant was published (in the same issue of the TM journal as TM ‘160 & ‘161) on the basis of a written order bearing the signature of the relevant Deputy Registrar. Both the impugned orders refer to an oral hearing that was conducted on the 29^th of July, 2010 i.e. just one day after the filing of the trademark application. The implication of these orders is the fact that the TMR was satisfied with the evidence produced by the Applicant i.e. ‘the false affidavits’ and thereby proceeding with the next step of the Registration process. Again, the holding of an oral hearing within a day of filing the trademark application is unheard of in the context of the Indian TMR.

(iii)The Fabricated Reply by the TM Applicants: Apart from the affidavit, the TM ‘161 file also contains a reply (available over here), purportedly written by the TM Applicant in response to the Examination Report of the Registrar, defending the TM Application against the adverse Examination Report. NO such order is made available for TM ‘160. However the entire ‘reply’ is hand-written on a simple piece of white paper and is not on the official letterhead of the TM Applicant. Moreover the signature on this reply does not match the signature on the original Affidavit filed by the TM Applicant and unlike all the other documents filed by the TM Applicant this particular reply does not bear the official ‘seal’ of the ‘Vicky Brush Company’. All other documents filed by this particular TM applicant bears’ the official ‘seal’ of the ‘Vicky Brush Company’. It is likely that somebody in the TMR has fabricated this reply, after the CBI complaint filed by Mr. Balakrishnan.

 

Conclusion: It is tempting to see cases such as these, as victimless crimes, where the TM Applicant has greased a few palms in order to expedite the official process. However in this particular case, the TM Applicant has been given rights which he is not entitled to under the law and it is most likely that the TM Applicant will use this registered trademark to sue the parties who have opposed his other trademarks. Therefore as a result of this one corrupt practice we will end up seeing the judicial system clogged with at least another 4 lawsuits/petitions at the very minimum. There will be victims because of this corruption.

 

I just hope that the DIPP takes a proactive stand in this case and initiates departmental proceedings against the guilty officers in this case, pending the CBI enquiry.