Background
The appeal was filed by Visage Beauty and Healthcare Pvt Ltd in the Delhi High Court under Section 91 of the Trade Marks Act, 1999, challenging an order dated September 19, 2024, by the Assistant Registrar of Trade Marks. The order declared the appellant’s trademark application (No. 4309324) for the mark "Oganic" abandoned, citing a time-barred counter statement to a notice of opposition.
Appellant's Trademark Application
Visage Beauty, operating under the O3+ mark since 2005, adopted the "Oganic" mark in 2019 as part of its O3+ family of marks. The application, filed on October 1, 2019, sought registration in Class 44 for beauty and health services on a proposed-to-be-used basis. The application faced objections, underwent hearings, and was accepted and advertised in December 2023.
Opposition and Procedural Issue
On February 7, 2024, respondent no. 2 filed an opposition to the application. The appellant claimed it was unaware of the opposition until a routine status check on May 2, 2024, despite the Trade Marks Registry’s E-Register indicating service on February 20, 2024. The appellant filed a counter statement on May 6, 2024, but received a show cause notice on June 29, 2024, for filing it beyond the two-month period prescribed under Section 21(2) of the Trade Marks Act. The appellant’s affidavit, filed after a July 31, 2024, hearing, stated non-service of the opposition notice, but the Registrar’s order ignored this and deemed the application abandoned.
Court’s Analysis
The Delhi High Court, presided over by Justice Amit Bansal, examined Section 21(2) of the Trade Marks Act, which requires a counter statement within two months of receiving the opposition notice, and Rule 18 of the Trade Marks Rules, 2017, which deems service complete upon sending. The court noted a conflict between these provisions, citing the Madras High Court’s ruling in Samsudeen A v. Registrar of Trade Marks, which advocated a purposive interpretation aligning Rule 18 with Section 21(2). The court also referenced prior Delhi High Court decisions, including Mars Incorporated v. The Registrar of Trade Marks, emphasizing that the time period starts upon actual receipt. The Registrar’s failure to acknowledge the appellant’s affidavit and the absence of service records due to a technical glitch supported the appellant’s claim of non-service.
Outcome
The court set aside the impugned order, finding no evidence of service of the opposition notice. The matter was remanded to the Trade Marks Registry, with directions to accept the appellant’s counter statement, serve it on respondent no. 2 within four weeks, and proceed with the opposition as per the Act and Rules. The court ensured compliance by directing the order’s transmission to the Controller General’s office.
Case Title: Visage Beauty and Healthcare Pvt Ltd Vs. Registrar of Trade Marks
Date of Order: April 9, 2025
Case No.: C.A.(COMM.IPD-TM) 84/2024
Neutral Citation: 2025:DHC:2733
Name of Court: High Court of Delhi at New Delhi
Name of Judge: Hon’ble Mr. Justice Amit Bansal
