Judgment:
Honble Shri Z.S. Negi,Chairman:
M/s Godfrey Phillips India Limited has filed an application for removal of the trade mark FORCE -10 registered in the name of the respondent from the Register of trade Marks or for rectification of the Register under section 47/57/125 of the Trade Marks Act, 1999.
2. A copy of the aforesaid rectification application was forwarded to the respondent for filing its counter statement but the same was received back undelivered with the postal remarks company has been closed and hence returned. Thereafter, the applicant was directed to furnish the correct/present address of the respondent and the respondent furnished the new address of the respondent. A copy of rectification application was again forwarded to the respondent. The same was again received back undelivered. Hearing notice dated 05.06.2008 was also received back undelivered. In view of these circumstances, the applicant has filed the present miscellaneous application seeking permission of this Appellate Board for substituted service through publication in the daily newspaper having its circulation in Hyderabad and Chennai. The applicant has averred in the miscellaneous application that they have reason to believe that the respondent is keeping out of way, for the purpose of avoiding service, and therefore, the only plausible alternative way left to serve the respondent is by way of substituted service. Thereafter, hearing of miscellaneous application was fixed on 25.03.2009 and a notice therefore was sent to both the parties on 26.02.2009. On the date of hearing, the applicant was represented by Shri Amit Mahajan, Advocate but none represented the respondent.
3. We have heard the learned counsel for the applicant who submitted that the rectification application was filed in 2005 but the respondent has neither taken any action to defend the matter nor entered appearance so far. The respondent has so long avoided service. Therefore, the only alternative left is to serve the notice on the respondent by way of publication in a daily newspaper having its circulation in Hyderabad and Chennai. The learned counsel brought to our notice that this Appellate Board has in the past also allowed such miscellaneous applications for substituted service. Accordingly, the present miscellaneous application for substituted service may also be allowed and the applicant may be permitted to publish the hearing notice in the daily newspaper.
4. After hearing the learned counsel for the applicant and perusing the records, we are satisfied that the service in the normal course is not possible and hence the respondent is required to notify the date and venue of hearing through publication of such notice in two daily newspapers, in English and vernacular. We, therefore, permit the applicant to publish the hearing notice in two newspapers, one in English and another in vernacular, having circulation in Hyderabad and Chennai by affording not less than fifteen clear days notice to the respondent before 27.07.2009. The rectification application will be taken up for hearing on 27.07.2009 and if the respondent does not appear on 27.07.2009, the rectification application shall be heard ex parte. The proof of publication of notice in two daily newspapers shall be furnished by the applicant at the time of hearing of the matter on 27.07.2009. The Registry is directed to forward the requisite notice of hearing for 27.07.2009 to the applicant along with copy of this order.
5. Miscellaneous application is allowed on the above terms. No order as to costs.