Aftab Tobacco Products vs Amanat Tobacco Gul Manufacture

2006(32)PTC713(Reg)

BEFORE THE TRADE MARKS REGISTRY, NEW DELHI

Application No. 583085 and Opposition No. DEL-T-3769

Decided On: 27.03.2006

Appellants: Aftab Tobacco Products
Vs.
Respondent: Amanat Tobacco Gul Manufacture

Judges/Coram:
D.S. Bansod, ARTM

Counsels: 

For Appellant/Petitioner/Plaintiff: Ajay Amitabh Suman, Adv.
For Respondents/Defendant: O.P. Chauhan, Adv.

JUDGMENT
D.S. Bansod, ARTM

1. The matter relates to the Review Petition dated 4th June, 2004 on Form TM-57 under Section 97(C) of the Trade and Merchandise Marks Act, 1958 filed by the opponents/petitioners against the Order dated 5th May, 2004 passed by Shri Ramji Lal, Assistant Registrar of Trade Marks (under the provisions of The Trade Marks Act, 1999) vide which the Opposition No. DEL-T-3769 was abandoned. The grounds 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 was sought for registration under application No. 583085 in class 34 claiming proprietorship to the mark since the year 1987 by M/s Aftab Tobacco Products, Malikpura, P.O. Mohamadabad, Yusufpur, Distt, Ghazipur, U.P. The application was advertised in Trade Marks Journal No. 1269 dated 16th April, 2002 at page No. 349.

3. A notice of opposition on Form TM-5 was lodged on 5th August, 2002 by M/s Amanat Tobacco Gul Manufacturers, Near Mahavir Dharamshala, Yusufpur, Mohamadabad, Distt, Ghazipur, U.P - 23227, objecting to the registration of the aforesaid mark of the Applicant under Sections 9, 11(a), 11(c), 12(1), 12(3) and 18(1) of the Trade and Merchandise Marks Act, 1958. The counter-statement was filed by the applicant on 23rd April, 2003 denying all the material averments in the notice of opposition. A request on Form TM-56 was filed for an extension of time (two months) up to 11th April, 2004 for filing the opponent's evidence in support of opposition. The said request was partly allowed and the extension of time up-to 15th March, 2004 was granted to the opponents for filing an evidence and informed to the opponent vide office letter No. 9444 dated 5th March, 2004 as per provision of Rule 50(1) of the Trade Marks Rules, 2002. Another request on Form TM-56 was filed for extension of time of one month (i.e. 15.03.2004 to 15.04.2004) but the said request was refused under the provision of Trade Marks Act, 1999 on 25th March, 2004.

4. The Review Petition came up for hearing before me on 24th October, 2005 when Shri O.P. Chauhan, Advocate appeared on behalf of the Opponents/Petitioners and Shri Ajay Amitabh Suman, Advocate authorised by M/s Delhi Registration Service appeared on behalf of the Applicant/Respondent.

5. The legal position of review under the Trade Marks Act, 1999 and the Trade Marks Rules, 2002 are that they did not specify any grounds for review of the Registrar's decision. The provisions contained in Order 47 Rule 1 of the Code of Civil 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 legal significance in Law, it must be taken that the Legislature has attacked to that term 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 as having the same legal meaning as in Order 47 Rule 1 of Civil Procedure Code.

6. Under Order 47 Rule 1 of Civil Procedure Code, a Review Petition can be entertained only on the basis of one or more of the following grounds:

I. On the ground of discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the Applicants knowledge or could not be produced by him at the time when the decree was passed or 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.

7. The question arises whether there is any mistake or error apparent on the face of the record to review the order.

8. Shri O.P. Chauhan, Advocate for the opponents/petitioners readout the statement of the case and grounds of Review and submitted that the evidence of the opponents filed on 5.4.2004 was not considered in the present case and law was not properly applied. Shri O.P. Chauhan, Advocate further submitted that the order for abandonment was passed under the 1999 Act cogently in violation and contravention of Section 159(4) of the Trade Marks Act, 1999. Hence, order as such should have been passed under the 1958 Act, which is still in force as enumerated under Section 159(4) of the 1999 Act as the instant opposition was filed 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 to the opponents which is a serious lapse on the part of the ex-Assistant Registrar and hence there is a patent mistake or error apparent on the face of record as envisage within the provisions of Order 47, Rule 1 of Civil Procedure Code.

9. Shri Ajay Amitabh Suman, Advocate appeared on behalf of the applicant/respondent stated that the Trade Marks Act, 1999 is actionable for TM-56 dated 9.2.2004 and thereafter dated 16.3.2004 and invited my attention to Rule 50 of The Trade Marks Rules, 2002 as well as Section (sic) of The Trade Marks Act, 1999 and requested for dismissal of the Review Petition with cost as there is no apparent mistake on the face of the record.

10. Shri O.P. Chauhan submitted that the opponents evidence was on record on the date of passing an impugned order dated 5th May, 2004 and requested to allow the 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 the counter statement or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request allow the opponent shall either leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar under this sub-rule and intimate the Registrar in writing of such delivery.

(2) If an opponent takes no action under Sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition.

(3) An application for the extension of the period of one month mentioned in Sub-rule (1) shall be made in Form TM-56 accompanied by the prescribed fee before the expiry of the period of two months mention and therein.

12. Under Rule 50(1) two months time is permitted to file the opponents evidence and thereafter one month extension in the aggregate can be granted and if 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 his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends 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. on 5th April, 2004. The extension of time up to 15th March, 2004 was granted to the opponents for filing an evidence and was accordingly informed to the opponents vide office Letter No. 9944 dated 5th March, 2004. Therefore the order was recorded on 25th March, 2004 under the provision of Rule 50(2) which says "If an opponent 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 by the Registrar at the time of passing the order as provided in Rule 50 of the Trade Marks Rules, 2002. Hence, there is no error apparent on the face of the record as pleaded by the opponents/petitioners.

13. The application for registration was filed on 15.10.1992 and the said matter is pending, I feel great injustice will accrue to the applicant if registration is denied to the applicant for the negligence of the Opponents. Moreover, the opponents/petitioners have a remedy to apply for its rectification.

14. I find that a careful consideration was given to the material placed on the record. I do not find any reason or mistake apparent on the face of the record to justify the review of the order in the absence of any petition. In the present case as already observed above the then Assistant Registrar vide his Order dated 5th May, 2004 gave a definite finding on merits after taking into consideration all the facts lead before him.

15. In view of the foregoing and on consideration of the overall facts and circumstances of the case, I hereby dismiss the Review Petition filed by the opponents/petitioners.

16. There shall be no order as to the costs.