Tilak Raj Bagga Vs. Deputy Registrar of Trade Marks and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1117821
CourtIntellectual Property Appellate Board IPAB
Decided OnNov-20-2009
Case NumberM.P.No. 191 of 2009 IN TA/237 of 2004/TM/DEL (CM(M) NO.331 of 2002) & M.P.No.192 of 2009 IN TRA/96 of 2004/TM/DEL (C.O.NO.23 of 2002)
JudgeHONOURABLE Ms. S. USHA VICE-CHAIRMAN & HONOURABLE SYED OBAIDUR RAHAMAN TECHNICAL MEMBER
AppellantTilak Raj Bagga
RespondentDeputy Registrar of Trade Marks and Another
Excerpt:
trade marks act, 1999 - section 100 - intellectual property appellate board (procedure) rules, 2003 -(circuit bench sitting at delhi) order (no.196/2009) s. usha, vice-chairman: 1. the miscellaneous petitions are filed to restore the main transferred appeal and transferred rectification application on file. for the sake of convenience the petitioner is referred to as the appellant and the respondent as respondent. 2. the transferred appeal and the transferred rectification application were filed before the honble high court of delhi in cm(m0 1331/03 and c.o. no.23/2002 respectively. both the matters were transferred to this appellate board as per the provisions of section 100 of the trade marks act, 1999 (hereinafter referred to as the act) and re-numbered as ta/237/04/tm/del and tra/96/04/tm/del. 3. the matters were posted for hearing on 20.04.209 when both counsel for the appellant and the respondent were present. the counsel for the respondent undertook to file fresh vakalat as there was a change in the counsel. the matters were, therefore, adjourned to 07.07.2009. on 07.07.2009 as there was no representation on behalf of the appellant the matters were treated as abandoned as per the provisions of intellectual property appellate board (procedure) rules, 2003 (hereinafter referred to as the rules). the appellant has now taken out miscellaneous petitions to recall the order dated 07.07.09 and to take on file the main matters. the matters were posted for maintainability by the registry of this board as to how an application for restoration can be filed when the appeal and application were treated as abandoned. 4. we heard both the counsel on 15.09.2009 at the circuit bench sitting at new delhi. shri md. sazid rayeen, learned counsel appeared on behalf of the appellant/petitioner and shri shailender kumar, learned counsel appeared on behalf of the respondent. as the parties are the same and the issue involved is also same, both the miscellaneous petitions were heard together and are being disposed off by this common order. 5. the counsel for the appellant reiterated what was stated in the petition and stated that he had given valid reasons for non appearance. the counsel for the appellant submitted that the rules provided under the rules even though did not provide for any rule to restore the matters can be restored in the interest of justice. the counsel for the respondent in reply submitted that this miscellaneous petition is filed to review the order where as this appellate board has no powers to review their own orders. 6. the above matters, namely the appeal and the application for rectification have been treated as abandoned in terms of rule 17(2) of the rules. the word “abandon” means in its ordinary and general meaning does not signify merely “leaving” but leaving completely and finally giving up all concern in, complete leaving of a thing as final rejection of ones responsibilities so that the thing becomes ownerless. 7. whartons law lexicon defines abandoned as – “a thing banned or denounced as forfeited or lost, whence to abandon, desert or forsake as lost and gone”. 8. the word “abandoned” is not defined. the words “abandoned” and “withdrawn” are used alternatively. this means the word “abandoned” takes colour from the expression “withdrawn”. withdrawn means to remove from the files of the court and this prevent the cause being tried. if that be so, the word “abandoned” means to give up with intent of never again resuming ones right or interest – “madhani amma vs. sailaja 1989 (1) kerala lj. 51. 9. to constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same. 10. going by the principles laid down by the kerala high court (supra) we are of the view that the appellant herein has not been present when the matters wee called and had no intention to get along with the matter this appellate board has, therefore, treated the matters as abandoned. when that be the case, the matter is taken out of court and cannot be tried. in such circumstances, the orders cannot be recalled and file cannot be taken on record. assuming that the matters have been dismissed for default or non-prosecution, then the order is not on merits and could be restored. 11. we, therefore, are of the opinion that the miscellaneous petitions are merit less and have to be dismissed as not maintainable. mincellaneous petitions no. 191 and 192/2009 are dismissed upholding the view of the registry of this board. no order as to costs.
Judgment:

(Circuit Bench Sitting at Delhi)

ORDER (No.196/2009)

S. Usha, Vice-Chairman:

1. The miscellaneous petitions are filed to restore the main transferred appeal and transferred rectification application on file. For the sake of convenience the petitioner is referred to as the appellant and the respondent as respondent.

2. The transferred appeal and the transferred rectification application were filed before the Honble High Court of Delhi in CM(M0 1331/03 and C.O. No.23/2002 respectively. Both the matters were transferred to this Appellate Board as per the provisions of section 100 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) and re-numbered as TA/237/04/TM/DEL and TRA/96/04/TM/DEL.

3. The matters were posted for hearing on 20.04.209 when both counsel for the appellant and the respondent were present. The counsel for the respondent undertook to file fresh vakalat as there was a change in the counsel. The matters were, therefore, adjourned to 07.07.2009. On 07.07.2009 as there was no representation on behalf of the appellant the matters were treated as abandoned as per the provisions of Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereinafter referred to as the Rules). The appellant has now taken out miscellaneous petitions to recall the order dated 07.07.09 and to take on file the main matters. The matters were posted for maintainability by the Registry of this Board as to how an application for restoration can be filed when the appeal and application were treated as abandoned.

4. We heard both the counsel on 15.09.2009 at the Circuit Bench Sitting at New Delhi. Shri Md. Sazid Rayeen, learned counsel appeared on behalf of the appellant/petitioner and Shri Shailender Kumar, learned counsel appeared on behalf of the respondent. As the parties are the same and the issue involved is also same, both the miscellaneous petitions were heard together and are being disposed off by this common order.

5. The counsel for the appellant reiterated what was stated in the petition and stated that he had given valid reasons for non appearance. The counsel for the appellant submitted that the rules provided under the Rules even though did not provide for any rule to restore the matters can be restored in the interest of justice. The counsel for the respondent in reply submitted that this miscellaneous petition is filed to review the order where as this Appellate Board has no powers to review their own orders.

6. The above matters, namely the appeal and the application for rectification have been treated as abandoned in terms of Rule 17(2) of the Rules. The word “abandon” means in its ordinary and general meaning does not signify merely “leaving” but leaving completely and finally giving up all concern in, complete leaving of a thing as final rejection of ones responsibilities so that the thing becomes ownerless.

7. Whartons Law Lexicon defines Abandoned as – “a thing banned or denounced as forfeited or lost, whence to abandon, desert or forsake as lost and gone”.

8. The word “abandoned” is not defined. The words “abandoned” and “withdrawn” are used alternatively. This means the word “abandoned” takes colour from the expression “withdrawn”. Withdrawn means to remove from the files of the court and this prevent the cause being tried. If that be so, the word “abandoned” means to give up with intent of never again resuming ones right or interest – “Madhani Amma vs. Sailaja 1989 (1) Kerala LJ. 51.

9. To constitute abandonment, there must be total or complete giving up of duties so as to indicate an intention not to resume the same.

10. Going by the principles laid down by the Kerala High Court (supra) we are of the view that the appellant herein has not been present when the matters wee called and had no intention to get along with the matter this Appellate Board has, therefore, treated the matters as abandoned. When that be the case, the matter is taken out of court and cannot be tried. In such circumstances, the orders cannot be recalled and file cannot be taken on record. Assuming that the matters have been dismissed for default or non-prosecution, then the order is not on merits and could be restored.

11. We, therefore, are of the opinion that the miscellaneous petitions are merit less and have to be dismissed as not maintainable. Mincellaneous petitions No. 191 and 192/2009 are dismissed upholding the view of the Registry of this Board. No order as to costs.