Judgment:
HON'BLE Ms.S.USHA, TECHNICAL MEMBER:
The main appeal arising out of the order dated 02.04.2008 passed by the Deputy Registrar of Trade Marks treating the opposition No. MAS-197921 as abandoned under rule 50(2) of the Trade marks Rules, 2002 and allowing the application No.1268858 in class 5 to proceed to registration.
2. The appellant herein filed a miscellaneous petition No.15/08 praying that the impugned order dated 02.04.2008 be stayed and a direction be issued to respondent No.2 not to issue the registration certificate till the appeal is decided. The appellant / petitioner had filed their notice of opposition to the application for registration of trade mark filed by the respondent No.1. The respondent No.1 had filed the counter statement. The petitioner had sought extension of time for filing their evidence and at the same time requested that the facts on the notice of opposition be considered for deciding the opposition if no evidence was filed. Subsequently, they had filed an interlocutory petition to take on record the evidence, as no documents under rule 51 was filed by the respondent No.1. The respondent No.2 without following the procedures had dismissed the interlocutory petition and treated the opposition as abandoned even without considering the fact that the applicant / respondent No.1 had not filed their evidence. The petitioner has a good case on merits and prayed that the operation of the impugned order be stayed and the registration certificate be not issued.
3. The respondent No.1 had not filed their reply to the miscellaneous petition but advanced their oral arguments.
4. The counsel for the petitioner reiterated the contents of the application and prayed that the order be stayed until disposal of the appeal. The counsel for the respondent No.1 submitted the verification para was not signed by the party nor by the counsel.
5. We have heard and considered the arguments of the both the counsel. On perusal of records, we are of the view that prima facie case has been made out by the petitioner. There was also not much opposition from the respondent No.1 in granting an order of stay. We, therefore, stay the operation of the impugned order dated 02.04.2008 and a direction is also issued to the Registrar not to issue the certificate of registration under application No.1268858 in class 5 until further orders. Let the main appeal be posted in the usual course. No order as to costs.