.....the petition was heard on 25.1.2005 during our sitting at new delhi. 2. it is the case of the petitioner that they were carrying on business of manufacture and sale of cycle tubes and tyres and quality rubber goods since 1973 adopting the trademark âusha in respect of cycle tubes. by virtue of the user, the petitioner became the proprieoter of the said mark and the same is used in the course of the trade and the mark has become distinctive to identify and recognise with goods exclusively belonging to the petitioner. the second respondent herein filed a suit no. 1409 of 1993 against the petitioner for infringement of trademark âusha and passing off etc. on the basis of the registration of the mark no. 326169 in class 12 in respect of tyres and tubes for cycles, in their favour. the second respondent also obtained an interim injection restraining the petitioner from using the same mark and the order of injunction is still in force. the word âusha is a well-known female personal name among the hindus and as such, the respondents 1 and 2 cannot claim any exclusive right over the trade mark âusha. the first and second respondents were not the proprietors of the.....
Tag this Judgment! Ask ChatGPT.....of the assistant registrar of trade marks. 3. we heard the learned counsel for the appellant. he submitted that section 25(3) of the trade marks act, 1999 read with rule 64(1) of the trade marks rules, 2002 creates a mandate against the registrar of trade marks to notify the registered proprietor in writing in form o-3 of the approaching expiration of the registered trade mark at the address of their principle place of business in india as entered in the register. it is a mandatory provision. learned counsel submitted that no such notice has been given by the assistant registrar to the appellant and thus there is a grave violation of principles of natural justice. he submitted that in view of this the assistant registrar of trade marks may be injuncted to restore back the mark on the register and renew it accordingly. assistant registrar of trade marks is the respondent in the matter and the learned counsel for the appellant submitted that the appeal has been appropriately served on the respondent. it was expected that the assistant registrar should have filed his counter statement in the matter giving details of the notice, if any, given in form o-3. we have neither received.....
Tag this Judgment! Ask ChatGPT.....their mark as early as 1972 whereas the appellant is seeking registration of the impugned mark by filing the application on 17.8.1988 as a proposed user, when the second respondent is also in the market with the same mark for more than sixteen years and as such the adoption by the appellant of the impugned mark is nothing but malafide one. we have also perused the file and considered the evidence available on record. we do not find any infirmity in the findings of the assistant registrar of trade marks. moreover, the findings being purely question of fact on the appreciation of the evidence available on record, in our view, no interference is called for. accordingly, on merits also, we find the appeal is devoid. hence, the appeal is dismissed. there will no order as to costs.
Tag this Judgment! Ask ChatGPT.....to delay the proceedings, we would confine ourselves to the cause for setting aside the ex-parte decree and the opposition for the same. 10. the fact remains that in the civil suit, as early as in 1992, the respondent filed their rejoinder wherein he has stated as follows: âit is not denied that the defendant has filed the c.o. before this honble court which is based on false and frivolous ground and the same is liable to be dismissed with cost.â. the learned counsel for the respondent also does not deny the statement. but, however, he contended that the knowledge of the respondent cannot be taken as a substitute for the service of summons in the c.o. till the service is completed in the c.o., there is no obligation on the part of the respondent to come to the court and defend the same. admittedly, the notice was served on 22.2.1994. subsequently, the c.o. was adjourned to 11.8.1994, 2.9.1994, 20.10.1994, 17.11.1994, 12/1/1995, 30.1.1995, 8.3.1995, 27.4.1995, 16.5.1995, 18.5.1995, 17.7.1995, 18.7.1995, 23.8.1995 and on 4..9.1995, the ex-parte decree was passed. the respondent did not care to verify from his counsel, having forwarded the papers for the hearing of.....
Tag this Judgment! Ask ChatGPT.....the respondent raised the plea that the cod is liable to be dismissed on the ground of non accompanying of the appeal papers. 8. now, coming to the facts of the case, there is no dispute that the impugned order of the assistant registrar was dispatched to the counsel for the applicant on 5.4.2004. giving a margin of two days for the receipt of the same, the counsel might have received the copy of the order on 7.4.2004. the limitation of three months prescribed under section 91(1) of the act expired on 6.7.2004. the fact remains that before the expiry of the period of limitation, the applicant filed the cod on 5.7.2004 with the registry with the statement of grounds. in paragraph 6 of the statement of grounds, the applicant has stated that the order was communicated to the applicant company by its attorney in the last week of june, 2004 and on enquiry, it was told that the said order was filed in the wrong file by the staff of the attorney as the attorney of the appellant is handling more than 30 opposition matters against the same applicant and the matter got mixed up and was only accidentally traced in the last week of june, 2004. as this cod was not accompanied with the.....
Tag this Judgment! Ask ChatGPT.....counsels. it is unnecessary for us to refer to the judgements cited by the learned counsel for the first respondent for the simple reason that the factum of the availability of sufficient cause has to be considered on the facts and circumstances of each case and the precedence cannot be followed in a blanket manner. 5. coming to the reason given by the petitioner for the delay is that their counsel immediately on receipt of the impugned order of the assistant registrar had forwarded the same to them and they misplaced the said impugned order. due to the misplacement of the impugned order they totally forgot about the matter till a reminder came from their counsel. immediately, the petitioner made arrangements and the appeal has been filed with a delay of 28 days. it is for us to consider whether the reason given by the petitioner for the delay would be a sufficient cause as contemplated under section 91, which is in parametria section 5 of the limitation act, 1963. 6. the reason given by the petitioner is misplacement of the impugned order received by them. the misplacement cannot be explained for everyday. naturally, the papers have to be traced and unless and until it is.....
Tag this Judgment! Ask ChatGPT.....is beyond the purview of the limited scope of review and further, the notice was dispatched by the registry which is clear from the statement of facts in the impugned order and as such, the service has to be presumed. in fact, the learned counsel for the respondent had received the notice of hearing and appeared on 23.4.2004 and argued the matter. hence, the story of non service of notice on the counsel for the appellant cannot be believed. apart from that, he also contended that a perusal of the impugned order of the assistant registrar of trade marks in the review petition does not call for any interference as the assistant registrar dismissed the review petition stating that the review sought for is to re-hear the matter afresh by setting aside the order dated 20.11.2002 which is not permitted under the law. 5. we have carefully considered the above contentions of both the learned counsel. the record reveals that the order dated 20.11.2002 was passed ex-parte as the learned counsel appearing for the appellant before the then deputy registrar had withdrawn from the case. the appellant did not appear in spite of the notice. we have also perused the order dated 20.11.2002. it.....
Tag this Judgment! Ask ChatGPT.....of the assistant registrar of trade marks. 3. we heard the learned counsel for the appellant. he submitted that section 25(3) of the trade marks act, 1999 read with rule 64(1) of the trade marks rules, 2002 creates a mandate against the registrar of trade marks to notify the registered proprietor in writing in form o-3 of the approaching expiration of the registered trade mark at the address of their principle place of business in india as entered in the register. it is a mandatory provision. learned counsel submitted that no such notice has been given by the assistant registrar to the appellant and thus there is a grave violation of principles of natural justice. he submitted that in view of this the assistant registrar of trade marks may be injuncted to restore back the mark on the register and renew it accordingly. assistant registrar of trade marks is the respondent in the matter and the learned counsel for the appellant submitted that the appeal has been appropriately served on the respondent. it was expected that the assistant registrar should have filed his counter statement in the matter giving details of the notice, if any, given in form o-3. we have neither received.....
Tag this Judgment! Ask ChatGPTReported in : (2005)(183)ELT92TriDel
.....that the imported items are accessories of cdma mobile hand sets. they are, therefore, covered by the description of the goods under sl. no. 320. as per col 2 of sl. no. 320, the goods must fall for classification under cta 8529.90 or any other chapter .therefore, the importers are correct in their contention that as long as the goods are covered by the description set out against sl. no. 320, which they admittedly are, they are eligible to exemption irrespective of where the items fall for classification. we, therefore, set aside the impugned order by which the direction for assessment of bill of entry by denying the benefit of notification has been upheld and allow the appeal with consequential relief due in accordance with law to the appellants, who have deposited the entire duty.
Tag this Judgment! Ask ChatGPTReported in : (2005)(184)ELT148TriDel
.....stocks were accumulated and the appellant was keeping freshly produced goods in packed condition outside the bonded store room; but within the factory premises. subsequently, on 15th february 2003, the officers visited the appellant's premises and raised allegation that the appellant was keeping finished goods without accountal for the purpose of clandestine removal.3. the contention of the appellant is that the storage outside the bonded store room was only on account of accumulation of stock and non-entry of stock in the statutory record was because the appellant was under the impression that the only when goods are placed in the bonded store room they were to be entered in the statutory books of account. during the hearing of the case, learned counsel for the appellant has emphasised that there was no evidence whatsoever to suggest that the appellant was carrying out or contemplating any clandestine removal and in these circumstances, confiscation and penalty were not justified.4. learned sdr has submitted that it is well settled that failure to enter finished goods in the rg-1 register would attract provisions of rule 173q of the central excise rules [1992 (61) e.l.t......
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