Hotel Hilton International, Kolkata Versus Hotel Hilltone Private Limited, Mt. Abu (Rajasthan) and Another - Court Judgment

SooperKanoon Citationsooperkanoon.com/1118098
CourtIntellectual Property Appellate Board IPAB
Decided OnJan-19-2005
Case NumberTransferred Appeal No.TA/259/2004/TM/AMD (A. No.1 of 1996) & M.P.No.127 of 2004
JudgeTHE HONOURABLE SHRI JUSTICE S. JAGADEESAN, CHAIRMAN & THE HONOURABLE DR. RAGHBIR SINGH, VICE CHAIRMAN
Excerpt:
(circuit bench sitting at ahmedabad) honble shri justice s. jagadeesan m/s. hotel hilltone private limited, the first respondent herein filed application no. 494536 for registration of the trademark ‘hilltone along with device of a ‘rock and the word ‘hotel in class 30 of the fourth schedule of the rules framed under the trade and merchandise marks act, 1958 in respect of ‘sweets, namkins, snacks, confectionary preparation made of flour, rice, cereals and pulses, bread and cakes. the said mark was advertised in the trade mark journal no. 1040 dated 1st october, 1992 at page 743. on 1.2.1993, the appellant herein m/s. hilton international company, gave notice of their intention to oppose registration of the trademark on the ground of its violative of sections 9, 11(a), 11(e) and 18(1) of the said act. the first respondent filed their counter statement and also grounds in rebuttal of the objections taken by the appellant. the appellant filed evidence in support of their opposition by way of an affidavit in the name mr. john geoffrey chester along with the documents exhibiting the worldwide directory of hilton hotels as exhibit jgc 1; list of the pending and registered trade marks of hilton international company in the various countries all over the world as exhibit jgc 2; photocopies of some advertisement as exhibit jgc 3, photocopies of various press releases as exhibit jgc 4; photocopies of some correspondence in respect of appointments of hilton reservation service contact office in india as exhibit jgc 5, photocopies of the certificates of registration of trade mark ‘hilton in various countries as exhibit jgc 6. by way of additional evidence, the appellant also filed annual reports and accounts for the year 1988 under exhibit 1 along with the affidavit dated 24.2.1994. they also filed the photocopies of hilton international consumer report and photocopies of various overseas press cuttings. the first respondent filed evidence in support of the registration by way of an affidavit in the name of shri vinod kumar agarwal and also the documentary evidence for the use of the mark along with the certificate of registration of the earlier mark no. 396750. when the matter was fixed for hearing on 7.6.1995, the first respondent filed an interlocutory petition dated 21.4.1995 seeking permission to file additional evidence and the same was fixed for hearing along with the main case. the appellant filed a petition for adjournment and since the adjournment was opposed by the counsel for the first respondent, the matter was heard ex parte. further, the assistant registrar of trade marks has taken into consideration all the affidavits filed by way of evidence in support of the opposition of the appellant and ultimately under the impugned order dismissed the opposition no. amd 558 of the appellant and ordered the application of the first respondent to proceed for registration subject to its association with their trademark 396750 with further condition that the first respondent shall have no exclusive right on the word hotel. aggrieved by the said order, the appellant preferred an appeal on the file of the high court of gujarat in ahmedabad in appeal no. 1 of 1996 and the same was transferred to this board in compliance of section 100 of the trade marks act, 1999 and numbered as ta/259/2004./tm/amd. 2. the appellant also filed a miscellaneous petition no. 127 of 2004 seeking permission to avail additional evidence consisting of various letters etc., running to 106 pages. we heard the appeal during our sitting at ahmedabad on 20.12.2004. shri yagnesh j. trivedi, learned counsel appeared for the appellant and shri r.r. shah, learned counsel appeared on behalf of the first respondent. 3. the learned counsel for the appellant contented that the assistant registrar of trade marks has disposed of the matter without giving an opportunity to the appellant by rejecting their request for adjournment. when the first respondent filed an interlocutory application on 21.4.1995 seeking permission to file additional evidence, naturally the appellant will be entitled for some time to file the counter and also the rebuttal evidence. the refusal of the adjournment by the assistant registrar is not justifiable. further, taking advantage of the absence of the appellants counsel, the counsel for the first respondent argued the matter before the assistant registrar by withdrawing the interlocutory application filed for the production of the additional evidence. this conduct of the learned counsel for the first respondent is also not in good taste especially when the appellant has filed application for adjournment in form tm-56 seeking time to file counter for the interlocutory application filed by the first respondent. the appellants ought to have been informed earlier about the intention of the first respondent to withdraw the said interlocutory application. hence the matter is required to be remitted back for fresh disposal giving an opportunity to the appellant. apart from this, the learned counsel for the appellant argued on merits and contented that the appellant has registered their mark internationally and as such their mark has become an honourable one. copies of the advertisements published in the international magazines and other publications produced by the appellant would definitely establish the trans-border reputation of the appellant in india. the assistant registrar, by way of alternative relief held that the first respondent is entitled for registration under section 12(3) of the said act, which is totally contrary to the provisions of the act. he also contented that the additional evidence produced along with the petition mp 127/2004 being the correspondence and certain valid piece of evidence to establish the use of the appellants mark in india, in the interest of justice, the additional evidence must be taken on file to decide the claim of the appellant. 4. the learned counsel for the first respondent, however, contented that the additional evidence produced along with the mp 127 of 2004 cannot be taken on file since the same is not in accordance with order 41 rule 27 of cpc. the additional evidence had been produced along with the verified petition without any affidavit from the party. the affidavit is a necessary compliance because the delay on the part of the appellant in producing such documentary evidence, which is already available with them, must be explained. the failure on the part of the appellant to file any affidavit would make the petition seeking leave to file additional evidence, liable to be dismissed as laid down by the division bench of madras high court in the case of k.l. rajakrishnan vs. parthas textiles, kottayam 1997 ptc (17) (db) at page 227 para 38 to 40. his further contention was that the appellant never used their trademark in india and the trans-border reputation was also not pleaded. consequently there is no need to interfere with the impugned order. 5. we carefully considered the above contentions of both the counsels. firstly we would like to take up the mp 127 of 2004. as rightly pointed out by the learned counsel for the first respondent, the mp was filed before this board on 13.12.2004. the list of documents is accompanied by a verified petition signed by the learned counsel for the appellant. in the second paragraph of the petition, on behalf of the appellant, it is stated that the appellant has recently given in possession of certain documents, which directly corresponding to the issue in dispute in the present appeal and which are crucial to the appellants case, in this case. in para 3, it is stated that in the light of the facts and circumstances, the appellant craves leave to file the said document in the present proceedings. a perusal of the documents reveals that they are the copy of the letters either of the appellant or addressed to the appellant. hence there is no doubt that the documents were in possession of the appellant at the time of filing the opposition as well as at the time of filing the evidence in support of their opposition. the appellant has filed additional evidences before the assistant registrar by filing two additional affidavits apart from the evidence filed along with the opposition. this statement of fact in the order of the assistant registrar was not disputed by either of the counsels. the assistant registrar disposed off the matter on 4th september, 1995 and sealed the order at ahmedabad on 22.9.1995. the appellant filed the appeal in the high court of gujarat on 22.12.1995. now the additional evidence is being sought to be produced in december 2004, i.e., nine years after filing of the appeal. the law requires the appellant to file an affidavit giving out the reasons for the delay. the affidavit is the requirement of the statute because the affidavit is as a substitute for the oral evidence. in fact, the division bench of the madras high court in the case of k.l. rajakrishnan vs. parthas textiles, kottayam 1997 ptc (17) (db) held as follows:- “38. it is stated by the learned counsel for the first respondent that voluminous documents were filed before the second respondent, and it was only copies of these documents that are filed before this court. the typed-set volumes 1, 2 and 3 filed before this court were sought to be admitted in evidence. 39. most of the documents that were filed before us were available with the first respondent and were in his possession even at the time when the proceedings were pending before the second respondent. under section 99 of the trade and merchandise marks act, evidence before the registrar or tribunal has to be by producing the document with an affidavit. when the statute itself provides for a particular mode of taking evidence, the registrar can only act in accordance with the statute. it is admitted by learned counsel for the first respondent that even though he produced those documents, copies of the same were not submitted either to the appellant or to any of the affected persons, nor did he file any affidavit as contemplated by the act. we must understand that the evidence is taken by affidavit in substitution for taking oral evidence. so unless the registrar thinks otherwise, that mode of taking evidence is exhaustive. it is at his discretion, it can be decided whether any oral evidence has to be taken in addition to the affidavit. but, evidence by affidavit is mandatory. once that procedure has not been followed by the first respondent, it follows that he has not produced any evidence even though the same was in possession. 40. under section 109 (8) of the act, the procedure of c.p.c. will apply in regard to hearing and disposal of appeals. if so, the contingency under order 41, rule 27, c.p.c. has to be complied with before any additional evidence could be taken before the appellate court. in the affidavit filed in support of the application, we do not find that any ground has been urged in this regard.” 6. the division bench of madras high court referred to sub-section 8 of section 109 of the said act regarding applicability of the code of civil procedure. the trade marks act, 1999 also made a reference to the applicability of the code of civil procedure in respect of receiving of evidence under section 92(2)(a). in the absence of any reason for the enormous delay in producing the additional evidence by way of an affidavit by the appellant, the additional evidence produced along with the mp 127/2004 cannot be received and the mp is dismissed. 7. coming to the merits, there is no dispute that the first respondent already registered the trademark no. 396750 and the present registration sought for is in association with the earlier registered one. the claim of the first respondent is that they are using the impugned mark ‘hilltone since 1977. the opposition on the part of the appellant is that they are using the mark much earlier and their mark had attained a honourable reputation and as such, the registration of the first respondents impugned mark would create confusion. the assistant registrar of trade marks had elaborately discussed the evidence let in by both the parties and categorically found that the appellant did not establish the user of their mark in india and their reputation elsewhere might not lead to presumption that their mark has become a well known mark in india. we also perused the evidence let in by the appellant. as rightly pointed out by the assistant registrar, the circulars, paper cuttings and advertisements produced by the appellant are of foreign countries. the registration of their mark is also in the foreign countries and not in india. perhaps knowing about this, the learned counsel for the appellant pleaded that the appellants mark had attained the transborder reputation. 8. in considering the plea of the learned counsel for the appellant regarding the transborder reputation, we are of the view that the appellant has not let in any piece of evidence that their mark was so familiar in india. there is no documentary evidence to show that their mark was advertised in any of the journals in india. they also failed to produce any evidence that the foreign journals in which their advertisements were made, are in circulation in india. the first correspondence is of the year 1988. prior to that, there is absolutely no evidence for the use of the appellants mark in india either directly or indirectly. coming to the evidence let in by the first respondent, they have produced copies of the bill books from the year 1979. the bill books bear the name ‘hotel hilltone. the appellant never disputed the genuineness of the copies of the bill books produced by the first respondent. hence there is enough material by way of evidence regarding the use of the disputed mark by the first respondent, at least since 1979. the assistant registrar of trade marks also found that the first respondent had proved their use of the disputed mark much earlier to that of the appellant. the accounts produced by the appellant relate only to the year 1988 and subsequent thereto. hence we do not find any infirmity in the findings of the assistant registrar trade marks and accordingly, we confirm the same. 9. so far as the contention of the learned counsel for the appellant that the findings of the assistant registrar of trade marks that the first respondent is entitled for registration of the impugned mark under section 12(3) cannot be legally valid as the said provision is not attracted especially when the goods are different in nature, we are of the view that there is absolutely no need to discuss the same in detail. the assistant registrar of trade marks has held that the first respondent is entitled for registration of the mark even under section 12(3) as an alternative measure. when the registration of the mark of the first respondent does not violate any of the provisions of the act, there is no need to draw a shelter under section 12(3) since the same would cover special circumstance of the use of both the marks. as we have held that the registration of the first respondents mark is not in violation to section 11(a) or (e) as well as 12(1) and 18(1), there is no need to invoke section 12(3). 10. next, we deal with the contention of the learned counsel for the appellant that the appellant was not given any opportunity to defend their opposition as their request for adjournment was refused and consequently the matter has to be remitted back for fresh disposal. it is true that the first respondent filed an interlocutory application for additional evidence, the copies of which was served on the appellant also. when the date of hearing was fixed and the appellant is being represented by the counsel, it is for the counsel to appear before the tribunal and make request for adjournment. the parties cannot be permitted for granted that the matter will be adjourned on their mere filing of a petition seeking adjournment. always the discretion is vested with the tribunal to consider as to whether the request for adjournment is reasonable and on sufficient cause. if the tribunal is of the view that there is no sufficient cause for the adjournment, then, the tribunal has got every authority to reject the adjournment and insist the matter to be proceeded with. even in the case on hand, the adjournment was sought for by the appellants only on the basis of the interlocutory application, which ultimately was not pressed by the first respondent. hence if the counsel for the appellant had been present on the date of the hearing, definitely he could have proceeded with the hearing especially when the interlocutory application was withdrawn by the first respondent, which ultimately relieved the appellant from filing any counter as well as from producing any rebuttal evidence. however, before us, all the materials were available and as such, we directed the counsel for the appellant to proceed with the appeal on merits on the ground that we can consider the entire evidence on record and dispose off the matter. the remand of the matter would further consume more time and will provide one more round of litigation. to avoid any delay, we thought it better to hear the matter on merits and we heard and decided the appeal on merits. 11. for the reasons stated above, the appeal fails and the same is dismissed. no costs.
Judgment:

(Circuit Bench sitting at Ahmedabad)

Honble Shri Justice S. Jagadeesan

M/s. Hotel Hilltone Private Limited, the first respondent herein filed application No. 494536 for registration of the trademark ‘HILLTONE along with device of a ‘rock and the word ‘hotel in Class 30 of the fourth Schedule of the Rules framed under the Trade and Merchandise Marks Act, 1958 in respect of ‘sweets, namkins, snacks, confectionary preparation made of flour, rice, cereals and pulses, bread and cakes. The said mark was advertised in the Trade Mark Journal No. 1040 dated 1st October, 1992 at page 743. On 1.2.1993, the appellant herein M/s. Hilton International Company, gave notice of their intention to oppose registration of the trademark on the ground of its violative of Sections 9, 11(a), 11(e) and 18(1) of the said Act. The first respondent filed their counter statement and also grounds in rebuttal of the objections taken by the appellant. The appellant filed evidence in support of their opposition by way of an affidavit in the name Mr. John Geoffrey Chester along with the documents exhibiting the worldwide Directory of Hilton Hotels as exhibit JGC 1; list of the pending and registered trade marks of Hilton International Company in the various countries all over the world as exhibit JGC 2; photocopies of some advertisement as exhibit JGC 3, photocopies of various press releases as exhibit JGC 4; photocopies of some correspondence in respect of appointments of Hilton reservation service contact office in India as exhibit JGC 5, photocopies of the certificates of registration of trade mark ‘HILTON in various countries as exhibit JGC 6. By way of additional evidence, the appellant also filed Annual Reports and Accounts for the year 1988 under exhibit 1 along with the affidavit dated 24.2.1994. They also filed the photocopies of Hilton International Consumer Report and photocopies of various overseas press cuttings. The first respondent filed evidence in support of the registration by way of an affidavit in the name of Shri Vinod Kumar Agarwal and also the documentary evidence for the use of the mark along with the Certificate of Registration of the earlier Mark No. 396750. When the matter was fixed for hearing on 7.6.1995, the first respondent filed an Interlocutory Petition dated 21.4.1995 seeking permission to file additional evidence and the same was fixed for hearing along with the main case. The appellant filed a petition for adjournment and since the adjournment was opposed by the counsel for the first respondent, the matter was heard ex parte. Further, the Assistant Registrar of Trade Marks has taken into consideration all the affidavits filed by way of evidence in support of the opposition of the appellant and ultimately under the impugned order dismissed the opposition No. AMD 558 of the appellant and ordered the application of the first respondent to proceed for registration subject to its association with their Trademark 396750 with further condition that the first respondent shall have no exclusive right on the word Hotel. Aggrieved by the said order, the appellant preferred an appeal on the file of the High Court of Gujarat in Ahmedabad in Appeal No. 1 of 1996 and the same was transferred to this Board in compliance of Section 100 of the Trade Marks Act, 1999 and numbered as TA/259/2004./TM/AMD.

2. The appellant also filed a Miscellaneous Petition No. 127 of 2004 seeking permission to avail additional evidence consisting of various letters etc., running to 106 pages. We heard the appeal during our sitting at Ahmedabad on 20.12.2004. Shri Yagnesh J. Trivedi, learned counsel appeared for the appellant and Shri R.R. Shah, learned counsel appeared on behalf of the first respondent.

3. The learned counsel for the appellant contented that the Assistant Registrar of Trade Marks has disposed of the matter without giving an opportunity to the appellant by rejecting their request for adjournment. When the first respondent filed an interlocutory Application on 21.4.1995 seeking permission to file additional evidence, naturally the appellant will be entitled for some time to file the counter and also the rebuttal evidence. The refusal of the adjournment by the Assistant Registrar is not justifiable. Further, taking advantage of the absence of the appellants counsel, the counsel for the first respondent argued the matter before the Assistant Registrar by withdrawing the interlocutory application filed for the production of the additional evidence. This conduct of the learned counsel for the first respondent is also not in good taste especially when the appellant has filed application for adjournment in Form TM-56 seeking time to file counter for the Interlocutory Application filed by the first respondent. The appellants ought to have been informed earlier about the intention of the first respondent to withdraw the said Interlocutory Application. Hence the matter is required to be remitted back for fresh disposal giving an opportunity to the appellant. Apart from this, the learned counsel for the appellant argued on merits and contented that the appellant has registered their mark internationally and as such their mark has become an honourable one. Copies of the advertisements published in the international magazines and other publications produced by the appellant would definitely establish the trans-border reputation of the appellant in India. The Assistant Registrar, by way of alternative relief held that the first respondent is entitled for registration under Section 12(3) of the said Act, which is totally contrary to the provisions of the Act. He also contented that the additional evidence produced along with the petition MP 127/2004 being the correspondence and certain valid piece of evidence to establish the use of the appellants mark in India, in the interest of justice, the additional evidence must be taken on file to decide the claim of the appellant.

4. The learned counsel for the first respondent, however, contented that the additional evidence produced along with the MP 127 of 2004 cannot be taken on file since the same is not in accordance with Order 41 Rule 27 of CPC. The additional evidence had been produced along with the verified petition without any affidavit from the party. The affidavit is a necessary compliance because the delay on the part of the appellant in producing such documentary evidence, which is already available with them, must be explained. The failure on the part of the appellant to file any affidavit would make the petition seeking leave to file additional evidence, liable to be dismissed as laid down by the Division Bench of Madras High Court in the case of K.L. Rajakrishnan Vs. Parthas Textiles, Kottayam 1997 PTC (17) (DB) at page 227 para 38 to 40. His further contention was that the appellant never used their trademark in India and the trans-border reputation was also not pleaded. Consequently there is no need to interfere with the impugned order.

5. We carefully considered the above contentions of both the counsels. Firstly we would like to take up the MP 127 of 2004. As rightly pointed out by the learned counsel for the first respondent, the MP was filed before this Board on 13.12.2004. The list of documents is accompanied by a verified petition signed by the learned counsel for the appellant. In the second paragraph of the petition, on behalf of the appellant, it is stated that the appellant has recently given in possession of certain documents, which directly corresponding to the issue in dispute in the present appeal and which are crucial to the appellants case, in this case. In para 3, it is stated that in the light of the facts and circumstances, the appellant craves leave to file the said document in the present proceedings. A perusal of the documents reveals that they are the copy of the letters either of the appellant or addressed to the appellant. Hence there is no doubt that the documents were in possession of the appellant at the time of filing the opposition as well as at the time of filing the evidence in support of their opposition. The appellant has filed additional evidences before the Assistant Registrar by filing two additional affidavits apart from the evidence filed along with the opposition. This statement of fact in the order of the Assistant Registrar was not disputed by either of the counsels. The Assistant Registrar disposed off the matter on 4th September, 1995 and sealed the order at Ahmedabad on 22.9.1995. The appellant filed the appeal in the High Court of Gujarat on 22.12.1995. Now the additional evidence is being sought to be produced in December 2004, i.e., nine years after filing of the appeal. The Law requires the appellant to file an affidavit giving out the reasons for the delay. The affidavit is the requirement of the statute because the affidavit is as a substitute for the oral evidence. In fact, the Division Bench of the Madras High Court in the case of K.L. Rajakrishnan Vs. Parthas Textiles, Kottayam 1997 PTC (17) (DB) held as follows:-

“38. It is stated by the learned counsel for the first respondent that voluminous documents were filed before the second respondent, and it was only copies of these documents that are filed before this Court. The typed-set volumes 1, 2 and 3 filed before this Court were sought to be admitted in evidence.

39. Most of the documents that were filed before us were available with the first respondent and were in his possession even at the time when the proceedings were pending before the second respondent. Under Section 99 of the Trade and Merchandise Marks Act, evidence before the Registrar or Tribunal has to be by producing the document with an affidavit. When the statute itself provides for a particular mode of taking evidence, the Registrar can only act in accordance with the statute. It is admitted by learned counsel for the first respondent that even though he produced those documents, copies of the same were not submitted either to the appellant or to any of the affected persons, nor did he file any affidavit as contemplated by the Act. We must understand that the evidence is taken by affidavit in substitution for taking oral evidence. So unless the Registrar thinks otherwise, that mode of taking evidence is exhaustive. It is at his discretion, it can be decided whether any oral evidence has to be taken in addition to the affidavit. But, evidence by affidavit is mandatory. Once that procedure has not been followed by the first respondent, it follows that he has not produced any evidence even though the same was in possession.

40. Under Section 109 (8) of the Act, the procedure of C.P.C. will apply in regard to hearing and disposal of Appeals. If so, the contingency under Order 41, Rule 27, C.P.C. has to be complied with before any additional evidence could be taken before the appellate Court. In the affidavit filed in support of the application, we do not find that any ground has been urged in this regard.”

6. The Division Bench of Madras High Court referred to Sub-Section 8 of Section 109 of the said Act regarding applicability of the code of civil procedure. The Trade Marks Act, 1999 also made a reference to the applicability of the code of civil procedure in respect of receiving of evidence under Section 92(2)(a). In the absence of any reason for the enormous delay in producing the additional evidence by way of an affidavit by the appellant, the additional evidence produced along with the MP 127/2004 cannot be received and the MP is dismissed.

7. Coming to the merits, there is no dispute that the first respondent already registered the trademark No. 396750 and the present registration sought for is in association with the earlier registered one. The claim of the first respondent is that they are using the impugned mark ‘HILLTONE since 1977. The opposition on the part of the appellant is that they are using the mark much earlier and their mark had attained a honourable reputation and as such, the registration of the first respondents impugned mark would create confusion. The Assistant Registrar of Trade Marks had elaborately discussed the evidence let in by both the parties and categorically found that the appellant did not establish the user of their mark in India and their reputation elsewhere might not lead to presumption that their mark has become a well known mark in India. We also perused the evidence let in by the appellant. As rightly pointed out by the Assistant Registrar, the circulars, paper cuttings and advertisements produced by the appellant are of foreign countries. The registration of their mark is also in the foreign countries and not in India. Perhaps knowing about this, the learned counsel for the appellant pleaded that the appellants mark had attained the transborder reputation.

8. In considering the plea of the learned counsel for the appellant regarding the transborder reputation, we are of the view that the appellant has not let in any piece of evidence that their mark was so familiar in India. There is no documentary evidence to show that their mark was advertised in any of the journals in India. They also failed to produce any evidence that the foreign journals in which their advertisements were made, are in circulation in India. The first correspondence is of the year 1988. Prior to that, there is absolutely no evidence for the use of the appellants mark in India either directly or indirectly. Coming to the evidence let in by the first respondent, they have produced copies of the bill books from the year 1979. The bill books bear the name ‘Hotel Hilltone. The appellant never disputed the genuineness of the copies of the bill books produced by the first respondent. Hence there is enough material by way of evidence regarding the use of the disputed mark by the first respondent, at least since 1979. The Assistant Registrar of Trade Marks also found that the first respondent had proved their use of the disputed mark much earlier to that of the appellant. The accounts produced by the appellant relate only to the year 1988 and subsequent thereto. Hence we do not find any infirmity in the findings of the Assistant Registrar Trade Marks and accordingly, we confirm the same.

9. So far as the contention of the learned counsel for the appellant that the findings of the Assistant Registrar of Trade Marks that the first respondent is entitled for registration of the impugned mark under Section 12(3) cannot be legally valid as the said provision is not attracted especially when the goods are different in nature, we are of the view that there is absolutely no need to discuss the same in detail. The Assistant Registrar of Trade Marks has held that the first respondent is entitled for registration of the mark even under Section 12(3) as an alternative measure. When the registration of the mark of the first respondent does not violate any of the provisions of the Act, there is no need to draw a shelter under Section 12(3) since the same would cover special circumstance of the use of both the marks. As we have held that the registration of the first respondents mark is not in violation to Section 11(a) or (e) as well as 12(1) and 18(1), there is no need to invoke Section 12(3).

10. Next, we deal with the contention of the learned counsel for the appellant that the appellant was not given any opportunity to defend their opposition as their request for adjournment was refused and consequently the matter has to be remitted back for fresh disposal. It is true that the first respondent filed an Interlocutory Application for additional evidence, the copies of which was served on the appellant also. When the date of hearing was fixed and the appellant is being represented by the counsel, it is for the counsel to appear before the Tribunal and make request for adjournment. The parties cannot be permitted for granted that the matter will be adjourned on their mere filing of a petition seeking adjournment. Always the discretion is vested with the Tribunal to consider as to whether the request for adjournment is reasonable and on sufficient cause. If the Tribunal is of the view that there is no sufficient cause for the adjournment, then, the Tribunal has got every authority to reject the adjournment and insist the matter to be proceeded with. Even in the case on hand, the adjournment was sought for by the appellants only on the basis of the Interlocutory Application, which ultimately was not pressed by the first respondent. Hence if the counsel for the appellant had been present on the date of the hearing, definitely he could have proceeded with the hearing especially when the Interlocutory Application was withdrawn by the first respondent, which ultimately relieved the appellant from filing any counter as well as from producing any rebuttal evidence. However, before us, all the materials were available and as such, we directed the counsel for the appellant to proceed with the appeal on merits on the ground that we can consider the entire evidence on record and dispose off the matter. The remand of the matter would further consume more time and will provide one more round of litigation. To avoid any delay, we thought it better to hear the matter on merits and we heard and decided the appeal on merits.

11. For the reasons stated above, the appeal fails and the same is dismissed. No costs.