### Case Citation
**K. Dalpat Singh v. Intellectual Property Appellate Board & Ors.**
High Court of Judicature at Madras
W.P. No. 5486 of 2019 and W.M.P. No. 6241 of 2019
Decided on: 02 August 2019
Author: C. Saravanan, J.
Bench: R. Subbiah, J. and C. Saravanan, J.
Reported at: Available on Indian Kanoon (http://indiankanoon.org/doc/192659305/) and Judis.nic.in.
### Brief Summary
The petitioner, K. Dalpat Singh, sought registration of the trademark "Gold Mehal" (TM Application No. 2573910) for CP Bath Fittings in Class 11, claiming use since 08.12.2011. The mark was advertised on 08.05.2017, and the 3rd respondent (M/s. Gold Medal Electricals Pvt. Ltd.) filed an opposition (No. 890521). The petitioner filed a counter-statement. The Assistant Registrar of Trade Marks, Chennai (2nd respondent), called for evidence from the opponent under Rule 45 of the Trade Marks Rules, 2017. The opponent informed the Mumbai office (not Chennai) on 05.10.2017 that it would not file evidence and would rely solely on the notice of opposition, copying the petitioner's attorney. The petitioner also waived evidence under Rule 46. Due to non-receipt at Chennai, the Registrar deemed the opposition abandoned on 06.07.2018 under Rule 45(2). The opponent appealed to the Intellectual Property Appellate Board (IPAB, 1st respondent), which set aside the abandonment order on 12.11.2018 and remanded the case for a merits hearing. The petitioner challenged this via writ petition, alleging procedural irregularities and violation of Rule 45(2). The High Court dismissed the writ, upholding IPAB's order, finding no miscarriage of justice as the opponent's intimation was valid (despite being sent to the wrong office), both parties waived evidence, and the case should proceed on merits based on the notice of opposition and counter-statement. Allegations of irregularity in IPAB proceedings (e.g., hearing dates) were rejected, noting the petitioner's counsel had appeared and consented to the Delhi hearing.
### Court's Interpretation of Trade Marks Rules, 2017 (Highlighting Key Aspects)
The court focused primarily on **Rule 45(2)** of the Trade Marks Rules, 2017 (corresponding to old Rule 50(2) of the 1999 Rules), which states that if an opponent fails to file evidence in support of opposition or intimate in writing (within two months from service of the counter-statement) that it does not wish to adduce evidence and will rely on the notice of opposition, the opposition shall be deemed abandoned.
- **Strict Compliance Not Absolute**: The court interpreted Rule 45(2) as not warranting automatic abandonment if the opponent substantially complies by intimating its intent not to file evidence, even if sent to the wrong registry office (Mumbai instead of Chennai). The communication dated 05.10.2017 was timely, copied to the petitioner's attorney, and acknowledged in the petitioner's own waiver letter under Rule 46. This sufficed to avoid abandonment, as the intent was clear and no prejudice was caused.
- **Distinction from Non-Compliance Cases**: The court distinguished this from the IPAB's earlier decision in *Sahil Kohli v. Registrar of Trade Marks & Anil Verma* (O.A./6-8/2018/TM/DEL, 18.10.2018), where abandonment was upheld due to complete failure to intimate or seek extension under Rule 131 (for time extension with fee). Here, the opponent exercised the option under Rule 45, so consequences under sub-rule (2) were not attracted.
- **Merits Over Technicality**: Emphasizing fairness, the court held that where both parties waive evidence (opponent under Rule 45, applicant under Rule 46), the Registrar should decide the opposition on merits using the notice of opposition and counter-statement alone, rather than deem it abandoned due to administrative oversight (e.g., non-transmission from Mumbai to Chennai). The absence of the opponent at the Registrar's hearing (20.06.2018) was not fatal, as the intimation was on record indirectly.
- **No Extension of Time Implied**: The court clarified that no request for time extension was needed here, as the opponent explicitly chose to rely on the notice without evidence, aligning with Rule 45's provisions.
- **Overall Equity**: The impugned IPAB order was not cryptic but remedial, merely remanding for merits without determining rights, thus requiring no interference under Article 226. The court rejected claims of miscarriage, noting the rules aim to ensure substantive justice over procedural lapses.
