Judgment:
Honble Shri Z.S. Negi,Chairman:
The appellant company, USV Limited, has filed the above appeal under section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) against the order dated 27.09.2007 passed by the Deputy Registrar of Trade Marks, Chennai by disallowing the opposition No. MAS-184144 and allowing the application No. 803620 in class 05 to proceed for registration. During the pendency of the appeal, the appellant filed miscellaneous application No. 46/2008 requesting this Appellate Board to direct the respondent No. 2 not to accept any Form TM-16 from the first respondent for amendment of the specification of goods in application No. 803620 in class 05 and to direct the respondent No. 2 not to give effect to the impugned order dated 27.09.2007 passed by him dismissing opposition No. MAS-184144, and also filed another miscellaneous application No. 47/2008 for taking on record the documents filed by the appellant as additional evidence in support of the appeal.
2. The Associate Vice President-Legal of the appellant company, Mrs. Vaishali N. Lotlikar, has filed affidavit dated 17.3.2009, annexing therewith a copy of settlement agreement dated 12th March, 2009, requesting this Appellate Board to pass an order treating the appeal as withdrawn. It is stated in the affidavit that the appellant and the first respondent have entered into a compromise in the proceedings O. S. No. 56/2001 between them before the City Civil Court at Secunderabad and as per the terms of compromise the appellant has acknowledged the first respondent as the proprietor of the mark NISE in respect of medicinal and pharmaceutical preparations and agreed that they would not object to use or registration of the said mark, not file any opposition, and agreed that they would not object to use or registration of the said mark, not file any oppositions, rectifications/cancellations and also withdraw all notices of oppositions to registration of the said mark and on the other hand the first respondent has acknowledged the appellant as the proprietor of the mark NIZER in respect of medicinal and pharmaceutical preparations and agreed that they would not object to use or registration of the said mark, not file any oppositions, rectifications/cancellations. It is further stated that as per the terms, appellant has also agreed to withdraw all legal proceedings, actions or claims filed against the first respondent before the Registrar of Trade Marks, the Intellectual Property Appellate Board or any court in relations to use, registration or title of the mark NISE and take steps for discontinuance of any such proceedings.
3. When the matter was taken up for hearing on 18.02.2009, learned counsel for both the parties submitted that settlement talks are going on between the parties, therefore, the matter may be adjourned for reporting settlement. Accordingly, the matter was fixed for hearing on 23.03.2009 and on that date of hearing i.e. 23.03.2009, it was submitted that though the appellant has filed a miscellaneous petition on 18.03.2009 requesting permission to withdraw the appeal, the same has not yet been scrutinized and numbered. We had, with the consent of learned counsel for both the parties, heard the miscellaneous application for withdrawal of appeal, subject to the condition that on scrutiny of the miscellaneous application if the same is found to be in order, the miscellaneous application would be allowed as the learned counsel for the first respondent has not opposed the said application.
4. During the course of hearing, the learned counsel for the appellant by reiterating the averments made in the miscellaneous application by the appellant asserted that permission to withdraw the appeal may be allowed and on the other hand, learned counsel for the first respondent expressed his no objection if the miscellaneous application is allowed subject to the said application being found in order and numbered. Accordingly, the order was reserved for scrutiny and numbering the miscellaneous application. Subsequently, upon scrutiny, the miscellaneous application is found to be in order and the same is numbered as M.P. No. 59/2009. We have perused the miscellaneous application and we are of the opinion that no prejudice will be caused to any of the parties, especially having regard to the terms of the settlement agreement agreed upon by the parties on 12.03.2009. Accordingly, we allow the miscellaneous application being M.P.No.59/2009 and, in consequence thereof, dismiss the appeal as withdrawn. When the appeal is dismissed as withdrawn, M.P. Nos. 46 and 47/2008 do not survive. However, there shall be no order as to costs.