Summary
In the case of Tibbs Food Private Limited vs D Lite Frankies and Foods Private Limited, the Madras High Court held that a trademark registration cannot continue in the name of a company that has been struck off and no longer exists in the eye of law. The court also observed that an assignment of a trademark that was never recorded with the Trade Marks Registry does not change the registered proprietor in official records. As a result, the trademark registration in the name of the non existent company was treated as non est and directed to be removed.
Background
Tibbs Food Private Limited (Petitioner) filed a rectification petition seeking the removal of a trademark registered in Class 30 for the device mark “D Lite Frankies and Foods Private Limited.” The trademark application was originally filed on 29 July 2010 and the mark was eventually registered on 21 December 2015 in the name of D Lite Frankie Food Private Limited.
After registration, the name of the company was changed to D Lite Frankies and Foods Private Limited. This change of name was recorded in the Trade Marks Registry through a Form TM 33 filed in November 2016. The petitioner filed the present rectification petition in December 2016, seeking removal of the trademark from the register. While the rectification proceedings were pending, the company executed a deed of assignment on 20 December 2018, transferring the trademark to one of its directors in his individual capacity.
However, no steps were taken to record the assignment with the Trade Marks Registry. As a result, the registry records continued to show the company as the registered proprietor of the trademark.
Subsequently, the company itself was struck off by the Registrar of Companies in 2019. Despite the assignment and the striking off of the company, the trademark was renewed on 23 September 2019 in the name of the company.
During the rectification proceedings, it came to light that the company that appeared as the registered proprietor in the registry records no longer existed. At the same time, the individual who claimed ownership of the trademark based on the assignment had not recorded the assignment with the Trade Marks Registry for several years.
These developments raised questions regarding whether the trademark registration could continue in the name of a non existent company and whether the unrecorded assignment could alter the legal position of the registered proprietor.
Questions Before the Court
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- Whether a trademark registration can continue in the name of a company that has been struck off and no longer exists in the eye of law.
- What is the effect of an assignment of a trademark that was never recorded with the Trade Marks Registry.
Petitioner’s Arguments
The petitioner submitted that the company in whose name the trademark was registered had already been struck off and therefore did not exist in the eye of law. The petitioner argued that the trademark registration could not continue in the name of such a non existent entity. The petitioner also pointed out that although the trademark was allegedly assigned to an individual in 2018, no steps were taken to record the assignment before the Trade Marks Registry. As a result, the official records continued to show the struck off company as the registered proprietor.
First Respondent’s Submissions
The first respondent relied on an affidavit filed by the individual who claimed that the trademark had been assigned to him by the company through a deed of assignment in December 2018. It was submitted that he was the owner of the trademark by virtue of the assignment.
The respondent further stated that he had informed the Trade Marks Registry about the assignment in August 2025 and had sought to record the change in proprietorship.
Court’s Analysis
On Trademark Registration in the Name of a Non-Existent Company
The court observed that, according to the records of the Trade Marks Registry, the registered proprietor of the trademark continued to be the company. The court said that the individual claiming the assignment had not taken steps to record the assignment for several years.
The court stated that because the assignment was not recorded, the registry records still showed the company as the registered proprietor. According to the court, as per the official records, the company remained the owner of the trademark.
The court observed that the company had already been struck off and was no longer in existence in the eyes of the law. In the eyes of the court, retaining a trademark registration in the name of a non-existent entity would serve no purpose.
The court further stated that the individual who claimed the assignment allowed the trademark to continue in the name of the company even after the assignment took place. The court said that nothing prevented him from taking steps to record his ownership earlier.
According to the court, the failure to record the assignment meant that the registry records continued to show the struck-off company as the proprietor. The court observed that this situation resulted in the trademark standing in the name of an entity that no longer existed.
The court therefore concluded that the trademark registration in the name of the company had become non est (“non-existent”) in the eyes of the law.
Analysis of Unrecorded Assignment
The court observed that although the individual claimed assignment of the trademark in 2018, he had not taken steps to register himself as the proprietor of the trademark. The court stated that because the assignment had not been recorded, the individual could not be treated as the registered proprietor based on the existing records.
According to the court, if the individual claimed rights in the trademark based on the assignment, he would have to pursue appropriate remedies independently in accordance with the law.
Findings
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- The court held that the company in whose name the trademark stood registered had already been struck off and therefore no longer existed in the eyes of the law.
- The court declared that the trademark registration standing in the name of the non-existent company had become non est in the eyes of the law.
- The court directed the Trade Marks Registry to remove the trademark registration standing in the name of the company within four weeks.
- The court further observed that if the individual who claimed assignment had any rights in the trademark, he must work out his remedies independently in accordance with the law.
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Case Citation: Tibbs Food Private Limited v. D Lite Frankies and Foods Private Limited, (T)OP(TM) No.250 of 2023, Madras High Court, decided on 19 February 2026. Available on https://indiankanoon.org/doc/103580638/
Authored by Gaurav Mishra, BananaIP Counsels