V.K. Garg, Proprietor, M/S. Pro Trading Co., Vs. M/S. Tarun Enterprises Pvt. Ltd., and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1117828
CourtIntellectual Property Appellate Board IPAB
Decided OnOct-22-2009
Case NumberDIARY NOs.3061 of 2009/TM/IPAB IN ORA/66 of 2008/TM/DEL
JudgeHONOURABLE Ms. S. USHA VICE-CHAIRMAN & HONOURABLE SYED OBAIDUR RAHAMAN TECHNICAL MEMBER
AppellantV.K. Garg, Proprietor, M/S. Pro Trading Co.,
RespondentM/S. Tarun Enterprises Pvt. Ltd., and Others
Excerpt:
(circuit bench sitting at new delhi) order (no.185/2009) s. usha, vice-chairman: 1. the instant diary no.3061/2009/tm/ipab has been posted for hearing to decide whether there has been a delay in filing the counter statement and if there has been a delay necessary fees along with a request for extension of time on form 3 to be filed by the respondent. 2. the original rectification application no.66/2008 was filed for expunging the trade mark “y-king” in class 7 under no.1349979. the application was filed on 26.03.2008. the notice on form c along with application was sent to the respondent on 16.04.2008 granting two months time to file their counter statement as per the rules. the counter statement is said to have been sent to the applicant directly within the stipulated time. 3. the counsel for the applicant had written to the registry of the appellate board requesting that the matter be posted for hearing as the counter statement was not filed even after the expiry of the limitation period. the registry had sought clarification from the counsel for the respondent as to the filing of the counter statement. the counsel in reply stated that the counter statement was sent on 11.06.2008 to the applicant. the registry had repeatedly written to the counsel for respondent to file proof of service to the applicant for which the counsel did not comply the same. the counsel for the respondent thereafter served a copy of the counter statement to applicants counsel on 28.02.2009 after a delay of 6 months. the registry therefore directed the counsel for the applicant to file form 3 for condoning the delay in filing the counter statement along with the requisite fees. 4. we heard both the counsel in this matter, the main contention of the counsel for respondent was that in the form c there was a direction that copy of the counter statement was to be served on the applicant and not on the counsel and hence it was directly served on the applicant in time and there is no delay. 5. the counsel for the applicant submitted that the delay in filing the reply to the counter statement was because they received the counter statement only on 04.03.2009. 6. we have gone through the correspondence between the registry and the counsels for the both sides. inspite of repeated letters from the registry directing the counsel for the respondent to file proof of service of the counter statement on the applicant, the counsel had not complied with. the courier receipt alone was sent to this office after a long delay by which it is not clear whether the papers have been served or not. 7. on perusal of the records, it is to be taken that the counter statement has been filed only on 28.02.2009 after a delay of 6 months. hence, we are of the view that an order be issued to the respondent to comply with the directions of the registry as per letter dated 07.05.2009. 8. we therefore direct the respondent to file form 3 for condoning the delay in filing the counter statement along with the requisite fee of rs.6000/- for the period from 12.08.2008 to 28.02.2009 within 3 weeks from the date of receipt of this order, failing which the original rectification application be heard exparte refusing to take on record the counter statement.
Judgment:

(Circuit Bench Sitting at New Delhi)

ORDER (No.185/2009)

S. Usha, Vice-Chairman:

1. The instant Diary No.3061/2009/TM/IPAB has been posted for hearing to decide whether there has been a delay in filing the counter statement and if there has been a delay necessary fees along with a request for extension of time on Form 3 to be filed by the respondent.

2. The original rectification application No.66/2008 was filed for expunging the Trade Mark “Y-King” in class 7 under No.1349979. The application was filed on 26.03.2008. The notice on Form C along with application was sent to the respondent on 16.04.2008 granting two months time to file their counter statement as per the rules. The counter statement is said to have been sent to the applicant directly within the stipulated time.

3. The counsel for the applicant had written to the Registry of the Appellate Board requesting that the matter be posted for hearing as the counter statement was not filed even after the expiry of the limitation period. The Registry had sought clarification from the counsel for the respondent as to the filing of the counter statement. The counsel in reply stated that the counter statement was sent on 11.06.2008 to the applicant. The Registry had repeatedly written to the counsel for respondent to file proof of service to the applicant for which the counsel did not comply the same. The counsel for the respondent thereafter served a copy of the counter statement to applicants counsel on 28.02.2009 after a delay of 6 months. The Registry therefore directed the counsel for the applicant to file Form 3 for condoning the delay in filing the counter statement along with the requisite fees.

4. We heard both the counsel in this matter, the main contention of the counsel for respondent was that in the Form C there was a direction that copy of the counter statement was to be served on the applicant and not on the counsel and hence it was directly served on the applicant in time and there is no delay.

5. The counsel for the applicant submitted that the delay in filing the reply to the counter statement was because they received the counter statement only on 04.03.2009.

6. We have gone through the correspondence between the Registry and the counsels for the both sides. Inspite of repeated letters from the Registry directing the counsel for the respondent to file proof of service of the counter statement on the applicant, the counsel had not complied with. The courier receipt alone was sent to this office after a long delay by which it is not clear whether the papers have been served or not.

7. On perusal of the records, it is to be taken that the counter statement has been filed only on 28.02.2009 after a delay of 6 months. Hence, we are of the view that an order be issued to the respondent to comply with the directions of the Registry as per letter dated 07.05.2009.

8. We therefore direct the respondent to file Form 3 for condoning the delay in filing the counter statement along with the requisite fee of Rs.6000/- for the period from 12.08.2008 to 28.02.2009 within 3 weeks from the date of receipt of this order, failing which the original rectification application be heard exparte refusing to take on record the counter statement.