Judgment:
Order (No.172/2009)
Z. S. Negi, Chairman
1. The respondent, Nucon Industries Pvt. Ltd in the rectification application, has filed the above miscellaneous petition seeking permission to file certain additional documents as evidence under rules 8 and 12 of the Intellectual Property Appellate Board (Procedure) Rules, 2003.
2. The petitioner in the miscellaneous petition has stated that they had filed the counter-statement and thereafter the applicant in the rectification application filed reply along with a miscellaneous petition seeking permission to file certain additional documents. The said miscellaneous petition was partly allowed. Amongst the additional documents sought to be filed, the petitioner submitted original purchase orders from M/s Sulzer India Limited, original purchase order from Kirloskar Pneumatic Co. Ltd., Pune and supply order of DRDL, Hyderabad to show that the petitioner herein was only a commission agent of the applicant in the rectification application and that the petitioner never used the impugned mark âZander. It is further stated that the documents sought to be filed through miscellaneous petition is only in response to the specific allegation that the petitioner is only a commission agent and that the petitioner has acted as an agent to Sulzer India Limited and Kirloskar India Limited. The petitioner further submits that it manufactured and supplied various products to its different customers on the purchase orders placed by them on the petitioner. Further, the petitioner supplied products like pneumatic cylinders, valves, filters and dryers and accessories in different ranges to its customers such as Sulzer India Ltd, Pune, Kirlosker Pneumatic Co. Ltd., Pune, Central Railway-Madya Railway, Bombay, Khosla Compressors Ltd., Delhi, Tal Manufacturing Solutions Ltd, Chinoy Electronic and Southern Structural Ltd. In order to meet the requirements of petitioners customers, the petitioner walked extra mile in importing some products like high pressure dryer and its accessories of HDK model from M/s Zander Aufbereltungstechnik GmbH, Germany by procuring these products to serve the customers in the best manner possible shows the integrity and efficiency of the petitioner, but the applicant in the rectification application has taken these isolated cases as example and is only trying to divert the attention of this Honble Appellate Board from the substantial issue of ownership of the impugned trade mark in India. The petitioner further states that its not pleading any new case or advancing any new arguments by way of these additional documents, but is only reiterating the fact that the applicant in the rectification application has knowledge of the registration of the impugned trade mark as early as in the year 1997 and they cannot now plead ignorance of the same and seek to rectify the register. The documents sought to be filed only goes to support the case of the petitioner and does not in any way alter or amend the case of the petitioner.
3. We have heard the counsel for both sides and perused the records. We are satisfied that the documents sought to be filed though pertain to pre-litum period but the same is sought to be filed to counter the documents introduced by the applicant in the rectification application through M.P.No.32/08. We are also of the view that the applicant for rectification application will not be taken by surprise as the same is filed in rebuttal to the documents filed by them through the aforesaid miscellaneous petition which was partly allowed. Even otherwise also, the petitioner ought to have been afforded opportunity to file its rebuttal of documents partly allowed vide order No.152/2008 dated 28.10.2008. Regarding filing of copy of e-mail dated 28.8.1997, the petitioner has explained that the same was not available with them at the time of filing counter-statement. We have no reasons to disagree with the explanation given by the petitioner.
4. In view of the above, M.P.No.67/09 is allowed. However, there will be no order as to costs.