Honble Shri Z. S. Negi,Chairman:
This is an appeal under section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 20.8.2007 passed by the Deputy Registrar of Trade Marks, Chennai whereby he has disallowed the opposition No. MAS-165136 and allowed the application No. 1000752 to proceed to registration. The appellant has filed along with the appeal an application being M.P. No. 142/2007 for stay of operation of the impugned order dated 20.8.2007.
2. The application for stay came up for hearing before us on 7.4.2008 when Shri M.K. Miglani, Advocate appeared on behalf of the appellant and Shri S. Balachandran, Advocate appeared on behalf of the respondent No.1. Learned counsel appearing for appellant submitted that the impugned order is ex facie not sustainable in law as there is a very strong probability that the said order would be set aside or quashed by this Appellate Board. He submitted that the respondent No.2 has passed the impugned order in utter violation of the principles of natural justice without having heard the appellant. Learned counsel submitted the matter was set down by the Registrar for hearing on 12.6.2007 which was adjourned to 27.7.2007 and, on 23.7.2007 the counsel for the appellant received a call from the office of Shri V. Balakrishnan, Advocate, representing the respondent No.1 informing that the respondent No.1 would be making a request for adjournment. The counsel for the appellant gave his consent to such request over telephone and simultaneously forwarded a letter dated 23.7.2007 to the Registrar as well as attorneys to the respondent No.1 informing them that since the appellants counsel had received a request for adjournment and consented to the same, therefore the counsel for the appellant was not travelling to Chennai to attend hearing fixed for 27.7.2007. Despite this, the Registrar conducted the hearing on 27.7.2007 and the respondent No.1 was represented through an Advocate and a trade mark agent and the appellant was not represented. The learned counsel for appellant further submitted that neither the respondent No.2 took note of the said letter dated 23.7.2007 nor the respondent No.1/its counsel ever refuted the contents of the said letter. The learned counsel further submitted that he again addressed a letter dated 10.9.2007 to the Registrar of Trade Marks, Chennai with a copy endorsed to the Controller General of Patents, Designs and Trade Marks as well as to the counsel for the respondent No.1 requesting that the impugned order may be recalled and the appellant may, in the interest of justice and fair play, be heard in the matter but nothing was heard by the appellant from any one of them. He also submitted that hearing of the present appeal will take some time as the respondent No.1 has yet not filed its counter-statement. No relative prejudice, injury or loss is likely to be caused to the respondent No.1 if the operation of the impugned order is stayed by this Appellate Board till the appeal is finally heard and decided.
3. Learned counsel for the respondent No.1 submitted that the respondent No.2 has gone through the records including evidence filed by the opponent/appellant as can be seen from page 2 of the order dated 20.8.2007 and thereafter came to the conclusion that the two marks are distinct apart and cannot be held to be deceptively similar. When the order is made after well consideration of records and evidence on record of the appellant, it cannot be said that the order under appeal is ex facie not sustainable in law and there can be no pre-supposition of its being set aside. He further submitted that if stay of operation of order of the respondent No.2 is granted it amounts to granting the relief sought in the appeal. He also submitted that there is no balance of convenience.
4. We have considered the arguments of both the counsel. It is well established that usually the prayer for grant of an interim relief is at a stage when the existence of the legal right and its violation are both contested and uncertain. Therefore, at this stage certain well established principles are followed. Keeping in view that the object of granting interim relief is to preserve status quo in rights of the parties and not to disturb the status quo. Interim relief is granted on the basis of prima facie case made out in the pleadings and that in the interest of justice such interim order is necessary in order to maintain the situation as on date. At the same time, in restraining the opposite party from exercising what he considers his legal right, we are required to take into consideration the balance of convenience. In the light of these, the application for interim relief would require consideration.
5. As submitted by Shri Miglani, the appellant was not heard in the matter and hearing took place and despite consent obtained from the appellants counsel, the counsel for respondent No.1 appeared and hearing went on shows utter violation of principles of natural justice which are fundamental principles in the justice administration system. Respondent No.2 in his order has recorded that the opponents (appellant herein) mark is word TIGER only, whereas as per documents at pages 180 to 182 the appellants mark is composite mark having the word TIGER and device of tiger. In view of this the appellant has made out a prima facie case for interim relief. The respondent No.1 is entitled to continue to carry on its business as has been carrying on till now without registration certificate also. The non-issuance of registration certificate will not cause prejudice or injury to the respondent No.1. On the other hand if stay is not granted and certificate of registration is issued, it would give rise to unforeseen legal complications.
6. In view of the above, we are of the opinion that it will meet the ends of justice if the Registrar is directed not to issue certificate of registration in pursuance of his order dated 20.8.2007. Accordingly, the Registrar is directed not to issue certificate of registration till the appeal is decided by the Appellate Board. The M.P. No. 142/2007 is disposed of on the above terms. However there is no order as to costs.