M/S. Betco Enterprises-a Registered Partnership Firm, Represented by Its Partner Vs. M/S. N.Ranga Rao and Sons and Another - Court Judgment

Excerpt:
trade marks act, 1999 section 91honble shri z. s. negi, chairman: m/s. betco enterprises, a registered partnership firm, has through mr. b. krishna kumar a partner of the firm has filed this appeal under section 91 of the trade marks act, 1999 (hereinafter referred to as the act), against the order dated 16.4.2008 passed by the registrar of trade marks, chennai whereby the registrar dismissed the oppositions and directed the applications to proceed for registration. 2. the first respondent, applicant before the trade marks registry, chennai, has filed application nos. 540603, 540605, 540606 and 540608, all in class 03 for registration of trade mark ‘three in one in respect of agarbathies (incense sticks) in urdu, telugu, malayalam and oriya languages. the mark was ordered to be advertised as accepted for registration subject to association with 426521. it was accordingly advertised in the trade marks journal and the appellant filed notice of oppositions on 30.5.1997 opposing the registrations sought for and eventually the matter was set down for hearing and the second respondent disposed of all the oppositions in a single order. aggrieved by the order passed by the second respondent, the opponent has filed the present appeal. on scrutiny of the appeal, the registry found certain defects therein and the said defects were notified by calling upon the appellant to rectify the same within 15 days from the date of receipt of the notice. one of such defects notified to the appellant was that individual appeal has to be filed for each trade mark application and opposition, which the second respondent disposed of by the impugned order. in response to this, the counsel for the appellant stated in his letter dated 6.9.2008 that the appeal is preferred from the order of the registrar of trade marks in one order and not against several orders and form 2 is very clear that appeal may be preferred against the registrar on goods falling in one class only and not on several classes. since the registrar has chosen to dispose of all the oppositions in one order, therefore, the appeal is filed against that one order of the registrar. he further stated that the appellant being the single party; the order being common for all oppositions; all marks are one and the same and the question of law and facts are same, the appellant is correct to file a single appeal only not several appeals are needed. it is also stated that section 91 of the act also clearly states that any person aggrieved by an order or decision of the registrar may prefer an appeal and does not restrict to opposition or any other matter. by another notice dated 4.11.2008 to the counsel for the appellant, the registry insisted that individual appeal be filed for each trade mark application and opposition. in reply to this notice, the counsel reiterating his earlier stand has stated that rules 122 and 123 of the trade marks rules, 2002 which deal with time for appeal and service to the registrar, respectively, do not talk about order or decision of the registrar as already it is stated in section 91 and the trade marks (applications and appeals to the intellectual property appellate board) rules, 2003 is silent and does not speak about appeals on what orders and decisions is to be made to the board. he went on to add that no where in the act or rules made there under it is stated that each opposition is to be appealed and hence it is submitted that only one fee is to paid for one order and not for each opposition or application as claimed by the registry. the counsel requested that the condition of payment of fee for each opposition may be withdrawn and if the registry is not willing to accept his reply, a hearing before the board may be afforded. 3. we have heard the learned counsel appearing for the appellant and perused the records. the learned counsel put forth his arguments on the lines of his reply to the notices of the registry of this appellate board, which are mentioned in the preceding paragraph of this order. we see a lot of merit in the submission made by the learned counsel for the appellant. section 91 of the act, under which the instant appeal is filed, read as under:- “91. appeal to appellate board.- (1) any person aggrieved by an order or decision of the registrar under this act, or the rules made thereunder may prefer an appeal to the appellate board within three months form the date on which the order or decision sought to be appealed against is communicated to such person preferring the appeal. (2) no appeal shall be admitted if it is preferred after the expiry of the period specified under sub-section (1): provided that an appeal may be admitted after the expiry of the period specified therefore, if the appellant satisfies the appellate board that he had sufficient cause for not preferring the appeal within the specified period. (3) an appeal to the appellate board shall be in the prescribed form and shall be verified in the prescribed manner and shall be accompanied by a copy of the order or decision appealed against and by such fees as may be prescribed.” from the plain reading of the above section of the act, it in no way suggests that there can be more than one appeal to an order or decision of the registrar. the words “an order or decision” and “an appeal” used in sub-section (1) of that section suggest that the legislature intended that there could be only one appeal against one order or decision of the registrar. when the legislative intent is clear or unambiguous, a natural or plain meaning should be given to the provision. when that is the position, the registry cannot direct the appellant to file four appeals against a single order, as in the present case, passed by the registrar of trade marks. 4. in view of above, we overrule the objection raised by the registry and direct them to take the appeal on record.