Judgment:
Honble Shri Z.S. Negi, Chairman:
The appellant has filed an appeal under section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) against the order dated 30th April, 2008 passed by the Deputy Registrar of Trade Marks, Chennai dismissing the Interlocutory Petition filed by the appellant seeking condonation of delay in filing the evidence under rule 51 of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules) and to take the said evidence on record. The appellant has alongwith the appeal filed the miscellaneous petition under section 95 of the Act.
2. The miscellaneous petition under section 95 of the Act came up before us for hearing on 10th August, 2009 when Ms. Aga Anand, Advocate appeared for the appellant and Shri L. Ramprasad, Advocate appeared for the respondent No.1. The counsel for the appellant submitted that the impugned order of the respondent No.2 is contrary to law, probabilities of the case and violative of the principles of natural justice. She submitted that the appellant has fair chances of success in the appeal and if the opposition proceedings is not stayed pending disposal of the present appeal, the purpose of filing this appeal will be frustrated and the respondent No.1 may also start to derive benefits from the impugned order and also seek to enforce their rights. Normally, this Appellate Board stays order of the Learned Registrar of Trade Marks pending the final disposal of the appeal and hence the Trade Marks Registry may be directed not to proceed further in the opposition proceedings during the pendency of the present appeal. On the other hand, the counsel for the respondent vehemently opposed the miscellaneous petition for stay. The learned counsel opposed the request for stay placing reliance upon the following judgments:
(a) 2009 AIR SCW 601 â Mohammed Yusuf vs. Faij Mohammad
and Ors
(b) (2005) 6 Supreme Court Cases 344 â Salem Advocate Bar Association, T.N. vs. Union of India
(c) 1996 (16) PTC 512 (SC) â Vishnudas trading as Vishnudas Kishendas vs. Vazir Sultan Tobacco Co. Ltd.
(d) 2007 (35) PTC 388(Del.) â Sunrider Corporation, U.S.A. vs. Hindustan Lever Ltd. and Another
3. He submitted that the appellant has failed to file the evidence within the stipulated time under rule 51 of the Rules and there is no power left with the Registrar of Trade Marks to extent the time beyond aggregating three months.
4. After hearing both the counsel, we are of the opinion that the appellant has failed to show the prima facie case, balance of convenience and irreparable injury. Firstly, there is no final or conclusive order which is required to be stayed and secondly, now it is about one and half years after the order dated 30th April, 2008 during which the respondent No.2 has not fixed any hearing in the opposition proceedings before him. If any hearing in the opposition proceedings is fixed, both parties may get notice therefore. We are of the further opinion that since the opposition proceedings is pending before the Registry of Trade Marks Chennai and the pleadings in appeal is complete, the appeal should be heard and disposed off finally at the earliest. Having this in view, we are not inclined to grants stay. However, the appeal should be posted for final hearing on 1st October, 2009. The miscellaneous petition is disposed off in the above terms.