Equivalent citations: 2006 (32) PTC 713 Reg
Bench: D Bansod, Artm
Aftab Tobacco Products vs Amanat Tobacco Gul Manufacture on 27/3/2006
JUDGMENT
D.S. Bansod, ARTM
1 The matter relates to the Review Petition dated 4th June, 2004 on FormTM−57 under Section 97(C) of the Trade and Merchandise Marks Act, 1958 filed bythe opponents/petitioners against the Order dated 5th May, 2004 passed by ShriRamji Lal, Assistant Registrar of Trade Marks (under the provisions of The TradeMarks Act, 1999) vide which the Opposition No. DEL−T−3769 was abandoned. Thegrounds of review are stated in the Review Petition (Statement of Case).
2 In brief the facts in this case are that the trade mark Raja Gul Label wassought for registration under application No. 583085 in class 34 claimingproprietorship to the mark since the year 1987 by M/s Aftab Tobacco Products,Malikpura, P.O. Mohamadabad, Yusufpur, Distt, Ghazipur, U.P. The application wasadvertised in Trade Marks Journal No. 1269 dated 16th April, 2002 at page No.
349.
1 A notice of opposition on Form TM−5 was lodged on 5th August, 2002 by M/sAmanat Tobacco Gul Manufacturers, Near Mahavir Dharamshala, Yusufpur,Mohamadabad, Distt, Ghazipur, U.P − 23227, objecting to the registration of theaforesaid mark of the Applicant under Sections 9, 11(a), 11(c), 12(1), 12(3) and18(1) of the Trade and Merchandise Marks Act, 1958. The counter−statement wasfiled by the applicant on 23rd April, 2003 denying all the material averments inthe notice of opposition. A request on Form TM−56 was filed for an extension oftime (two months) up to 11th April, 2004 for filing the opponent’s evidence insupport of opposition. The said request was partly allowed and the extension oftime up−to 15th March, 2004 was granted to the opponents for filing an evidenceand informed to the opponent vide office letter No. 9444 dated 5th March, 2004as per provision of Rule 50(1) of the Trade Marks Rules, 2002. Another requeston Form TM−56 was filed for extension of time of one month (i.e. 15.03.2004 to15.04.2004) but the said request was refused under the provision of Trade MarksAct, 1999 on 25th March, 2004.
2 The Review Petition came up for hearing before me on 24th October, 2005when Shri O.P. Chauhan, Advocate appeared on behalf of the Opponents/Petitionersand Shri Ajay Amitabh Suman, Advocate authorised by M/s Delhi RegistrationService appeared on behalf of the Applicant/Respondent.
3 The legal position of review under the Trade Marks Act, 1999 and the TradeMarks Rules, 2002 are that they did not specify any grounds for review of theRegistrar’s decision. The provisions contained in Order 47 Rule 1 of the Code ofCivil Procedure do not in terms apply to the proceedings before the Registrar.But since the Legislature has deliberately used a term which has a known legalsignificance in Law, it must be taken that the Legislature has attacked to thatterm that known legal significance. Hence, it would appear that the term"Review" in Section 127(C) of the Trade Marks Act, 1999 must be construed ashaving the same legal meaning as in Order 47 Rule 1 of Civil Procedure Code.
4 Under Order 47 Rule 1 of Civil Procedure Code, a Review Petition can beentertained only on the basis of one or more of the following grounds:
I. On the ground of discovery of new and important matter or evidencewhich, after the exercise of due diligence, was not within the Applicantsknowledge or could not be produced by him at the time when the decree was passedor order made, or
II. On account of some mistake or error apparent on the face of the Record,
or III. For any other sufficient reason.
1 The question arises whether there is any mistake or error apparent on theface of the record to review the order.
2 Shri O.P. Chauhan, Advocate for the opponents/petitioners readout thestatement of the case and grounds of Review and submitted that the evidence ofthe opponents filed on 5.4.2004 was not considered in the present case and lawwas not properly applied. Shri O.P. Chauhan, Advocate further submitted that theorder for abandonment was passed under the 1999 Act cogently in violation andcontravention of Section 159(4) of the Trade Marks Act, 1999. Hence, order assuch should have been passed under the 1958 Act, which is still in force asenumerated under Section 159(4) of the 1999 Act as the instant opposition wasfiled under the provisions of 1958 Act and not under the Trade Marks Act, 1999.Moreover, the refusal of TM−56 dated 16th March, 2004 was not communicated tothe opponents which is a serious lapse on the part of the ex−Assistant Registrarand hence there is a patent mistake or error apparent on the face of record asenvisage within the provisions of Order 47, Rule 1 of Civil Procedure Code.
3 Shri Ajay Amitabh Suman, Advocate appeared on behalf of theapplicant/respondent stated that the Trade Marks Act, 1999 is actionable forTM−56 dated 9.2.2004 and thereafter dated 16.3.2004 and invited my attention toRule 50 of The Trade Marks Rules, 2002 as well as Section (sic) of The TradeMarks Act, 1999 and requested for dismissal of the Review Petition with cost asthere is no apparent mistake on the face of the record.
4 Shri O.P. Chauhan submitted that the opponents evidence was on record onthe date of passing an impugned order dated 5th May, 2004 and requested to allowthe review petition filed by the opponents/petitioners.
11. The provisions of Rule 50 of The Trade Marks Rules, 2002 are as under:
Evidence in support of opposition.−
(1) Within two months from services on him of a copy of thecounterstatement or within such further period not exceeding one month in theaggregate thereafter as the Registrar may on request allow the opponent shalleither leave with the Registrar, such evidence by way of affidavit as he maydesire to adduce in support of his opposition or shall intimate to the Registrarand to the applicant in writing that he does not desire to adduce evidence insupport of his opposition but intends to rely on the facts stated in the noticeof opposition. He shall deliver to the applicant copies of any evidence that heleaves with the Registrar under this sub−rule and intimate the Registrar inwriting of such delivery.
(2) If an opponent takes no action under Sub−rule (1) within the timementioned therein, he shall be deemed to have abandoned his opposition.
(3) An application for the extension of the period of one month mentionedin Sub−rule (1) shall be made in Form TM−56 accompanied by the prescribed feebefore the expiry of the period of two months mention and therein.
12. Under Rule 50(1) two months time is permitted to file the opponentsevidence and thereafter one month extension in the aggregate can be granted andif the request is allowed the opponent shall either Leave with the Registrar,such evidence by way of affidavit as he may desire to adduce in support of hisopposition or shall intimate to the Registrar and to the applicant in writingthat he does not desire to adduce evidence in support of his opposition butintends to rely on the facts stated in the notice of opposition. In the present case opponents/petitioners has filed evidence after the 3 months period i.e. on5th April, 2004. The extension of time up to 15th March, 2004 was granted to theopponents for filing an evidence and was accordingly informed to the opponentsvide office Letter No. 9944 dated 5th March, 2004. Therefore the order wasrecorded on 25th March, 2004 under the provision of Rule 50(2) which says "If anopponent takes no action under Sub−rule (1) within the time mentioned therein,he shall be deemed to have abandoned his opposition. This fact was considered bythe Registrar at the time of passing the order as provided in Rule 50 of theTrade Marks Rules, 2002. Hence, there is no error apparent on the face of therecord as pleaded by the opponents/petitioners.
The application for registration was filed on 15.10.1992 and the saidmatter is pending, I feel great injustice will accrue to the applicant ifregistration is denied to the applicant for the negligence of the Opponents.Moreover, the opponents/petitioners have a remedy to apply for itsrectification.
1 I find that a careful consideration was given to the material placed onthe record. I do not find any reason or mistake apparent on the face of therecord to justify the review of the order in the absence of any petition. In thepresent case as already observed above the then Assistant Registrar vide hisOrder dated 5th May, 2004 gave a definite finding on merits after taking intoconsideration all the facts lead before him.
2 In view of the foregoing and on consideration of the overall facts andcircumstances of the case, I hereby dismiss the Review Petition filed by theopponents/petitioners.
16. There shall be no order as to the costs.
Bench: D Bansod, Artm
Aftab Tobacco Products vs Amanat Tobacco Gul Manufacture on 27/3/2006
JUDGMENT
D.S. Bansod, ARTM
1 The matter relates to the Review Petition dated 4th June, 2004 on FormTM−57 under Section 97(C) of the Trade and Merchandise Marks Act, 1958 filed bythe opponents/petitioners against the Order dated 5th May, 2004 passed by ShriRamji Lal, Assistant Registrar of Trade Marks (under the provisions of The TradeMarks Act, 1999) vide which the Opposition No. DEL−T−3769 was abandoned. Thegrounds of review are stated in the Review Petition (Statement of Case).
2 In brief the facts in this case are that the trade mark Raja Gul Label wassought for registration under application No. 583085 in class 34 claimingproprietorship to the mark since the year 1987 by M/s Aftab Tobacco Products,Malikpura, P.O. Mohamadabad, Yusufpur, Distt, Ghazipur, U.P. The application wasadvertised in Trade Marks Journal No. 1269 dated 16th April, 2002 at page No.
349.
1 A notice of opposition on Form TM−5 was lodged on 5th August, 2002 by M/sAmanat Tobacco Gul Manufacturers, Near Mahavir Dharamshala, Yusufpur,Mohamadabad, Distt, Ghazipur, U.P − 23227, objecting to the registration of theaforesaid mark of the Applicant under Sections 9, 11(a), 11(c), 12(1), 12(3) and18(1) of the Trade and Merchandise Marks Act, 1958. The counter−statement wasfiled by the applicant on 23rd April, 2003 denying all the material averments inthe notice of opposition. A request on Form TM−56 was filed for an extension oftime (two months) up to 11th April, 2004 for filing the opponent’s evidence insupport of opposition. The said request was partly allowed and the extension oftime up−to 15th March, 2004 was granted to the opponents for filing an evidenceand informed to the opponent vide office letter No. 9444 dated 5th March, 2004as per provision of Rule 50(1) of the Trade Marks Rules, 2002. Another requeston Form TM−56 was filed for extension of time of one month (i.e. 15.03.2004 to15.04.2004) but the said request was refused under the provision of Trade MarksAct, 1999 on 25th March, 2004.
2 The Review Petition came up for hearing before me on 24th October, 2005when Shri O.P. Chauhan, Advocate appeared on behalf of the Opponents/Petitionersand Shri Ajay Amitabh Suman, Advocate authorised by M/s Delhi RegistrationService appeared on behalf of the Applicant/Respondent.
3 The legal position of review under the Trade Marks Act, 1999 and the TradeMarks Rules, 2002 are that they did not specify any grounds for review of theRegistrar’s decision. The provisions contained in Order 47 Rule 1 of the Code ofCivil Procedure do not in terms apply to the proceedings before the Registrar.But since the Legislature has deliberately used a term which has a known legalsignificance in Law, it must be taken that the Legislature has attacked to thatterm that known legal significance. Hence, it would appear that the term"Review" in Section 127(C) of the Trade Marks Act, 1999 must be construed ashaving the same legal meaning as in Order 47 Rule 1 of Civil Procedure Code.
4 Under Order 47 Rule 1 of Civil Procedure Code, a Review Petition can beentertained only on the basis of one or more of the following grounds:
I. On the ground of discovery of new and important matter or evidencewhich, after the exercise of due diligence, was not within the Applicantsknowledge or could not be produced by him at the time when the decree was passedor order made, or
II. On account of some mistake or error apparent on the face of the Record,
or III. For any other sufficient reason.
1 The question arises whether there is any mistake or error apparent on theface of the record to review the order.
2 Shri O.P. Chauhan, Advocate for the opponents/petitioners readout thestatement of the case and grounds of Review and submitted that the evidence ofthe opponents filed on 5.4.2004 was not considered in the present case and lawwas not properly applied. Shri O.P. Chauhan, Advocate further submitted that theorder for abandonment was passed under the 1999 Act cogently in violation andcontravention of Section 159(4) of the Trade Marks Act, 1999. Hence, order assuch should have been passed under the 1958 Act, which is still in force asenumerated under Section 159(4) of the 1999 Act as the instant opposition wasfiled under the provisions of 1958 Act and not under the Trade Marks Act, 1999.Moreover, the refusal of TM−56 dated 16th March, 2004 was not communicated tothe opponents which is a serious lapse on the part of the ex−Assistant Registrarand hence there is a patent mistake or error apparent on the face of record asenvisage within the provisions of Order 47, Rule 1 of Civil Procedure Code.
3 Shri Ajay Amitabh Suman, Advocate appeared on behalf of theapplicant/respondent stated that the Trade Marks Act, 1999 is actionable forTM−56 dated 9.2.2004 and thereafter dated 16.3.2004 and invited my attention toRule 50 of The Trade Marks Rules, 2002 as well as Section (sic) of The TradeMarks Act, 1999 and requested for dismissal of the Review Petition with cost asthere is no apparent mistake on the face of the record.
4 Shri O.P. Chauhan submitted that the opponents evidence was on record onthe date of passing an impugned order dated 5th May, 2004 and requested to allowthe review petition filed by the opponents/petitioners.
11. The provisions of Rule 50 of The Trade Marks Rules, 2002 are as under:
Evidence in support of opposition.−
(1) Within two months from services on him of a copy of thecounterstatement or within such further period not exceeding one month in theaggregate thereafter as the Registrar may on request allow the opponent shalleither leave with the Registrar, such evidence by way of affidavit as he maydesire to adduce in support of his opposition or shall intimate to the Registrarand to the applicant in writing that he does not desire to adduce evidence insupport of his opposition but intends to rely on the facts stated in the noticeof opposition. He shall deliver to the applicant copies of any evidence that heleaves with the Registrar under this sub−rule and intimate the Registrar inwriting of such delivery.
(2) If an opponent takes no action under Sub−rule (1) within the timementioned therein, he shall be deemed to have abandoned his opposition.
(3) An application for the extension of the period of one month mentionedin Sub−rule (1) shall be made in Form TM−56 accompanied by the prescribed feebefore the expiry of the period of two months mention and therein.
12. Under Rule 50(1) two months time is permitted to file the opponentsevidence and thereafter one month extension in the aggregate can be granted andif the request is allowed the opponent shall either Leave with the Registrar,such evidence by way of affidavit as he may desire to adduce in support of hisopposition or shall intimate to the Registrar and to the applicant in writingthat he does not desire to adduce evidence in support of his opposition butintends to rely on the facts stated in the notice of opposition. In the present case opponents/petitioners has filed evidence after the 3 months period i.e. on5th April, 2004. The extension of time up to 15th March, 2004 was granted to theopponents for filing an evidence and was accordingly informed to the opponentsvide office Letter No. 9944 dated 5th March, 2004. Therefore the order wasrecorded on 25th March, 2004 under the provision of Rule 50(2) which says "If anopponent takes no action under Sub−rule (1) within the time mentioned therein,he shall be deemed to have abandoned his opposition. This fact was considered bythe Registrar at the time of passing the order as provided in Rule 50 of theTrade Marks Rules, 2002. Hence, there is no error apparent on the face of therecord as pleaded by the opponents/petitioners.
The application for registration was filed on 15.10.1992 and the saidmatter is pending, I feel great injustice will accrue to the applicant ifregistration is denied to the applicant for the negligence of the Opponents.Moreover, the opponents/petitioners have a remedy to apply for itsrectification.
1 I find that a careful consideration was given to the material placed onthe record. I do not find any reason or mistake apparent on the face of therecord to justify the review of the order in the absence of any petition. In thepresent case as already observed above the then Assistant Registrar vide hisOrder dated 5th May, 2004 gave a definite finding on merits after taking intoconsideration all the facts lead before him.
2 In view of the foregoing and on consideration of the overall facts andcircumstances of the case, I hereby dismiss the Review Petition filed by theopponents/petitioners.
16. There shall be no order as to the costs.
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