Semantic Analysis by spaCy
Krishna Oil Industries, Gujarat Vs. Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another
Decided On : May-09-2007
Court : Intellectual Property Appellate Board IPAB
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Appellant' ) ), 'desc' => array( 'Judgement' => array( 'id' => '1118044', 'acts' => null, 'appealno' => 'OA/3/2005/TM/AMD ', 'appellant' => 'Krishna Oil Industries, Gujarat', 'authreffered' => null, 'casename' => 'Krishna Oil Industries, Gujarat Vs. Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => 'Akshay A Vakil, Y.J.Jasani.', 'counseldef' => null, 'court' => 'Intellectual Property Appellate Board IPAB', 'court_type' => 'TRI', 'decidedon' => '2007-05-09', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'THE HONOURABLE SHRI JUSTICE M.H.S. ANSARI, CHAIRMAN & THE HONOURABLE MS. S. USHA, TECHNICAL MEMBER', 'judgement' => '<p style="text-align: justify;">(Circuit Bench at Ahmedabad)<p style="text-align: justify;"> Hon'ble Ms.S.Usha, Technical Member: </p><p style="text-align: justify;"> Appeal challenging the order dated 8.6.2004 of the Assistant Registrar of Trade Marks, Ahmedabad in opposition No. AMD â 58501 against application No.641893 in class 29 of the trade mark âEKKA under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act) whereby treating the opposition as abandoned under rule 50(2) of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules).</p><p style="text-align: justify;"> 2. The second respondent herein filed an application for registration of the trade mark âEKKA under No.641893 in class 29 in respect of edible oil on 03.10.1994 claiming user since 1986. The said application was advertised in the Trade marks Journal No.1236 at page 3671 dated 1.12.2000. The appellant herein filed notice of opposition in Form TM-5 opposing the said registration on various grounds. The second respondent filed their counter statement on 19.10.2001. on 5.12.2001 the appellants were served with the copy of the counter statement along with a letter directing the appellants to file their evidence in support of opposition within two months i.e. on or before 5.2.2002. the appellants neither filed their evidence in support of opposition nor filed an application for extension of time to file evidence until 1.7.2002 and made a first request only then on form TM-56 for extension of time of six months. The first respondent had granted an extension of time of six months i.e. up to 5.8.2002 from 5.2.2002. The appellant subsequently made a request for extension on 5.8.2002 and the first respondent had granted time till 5.12.2002. The appellant further made a request on 27.12.2002 on the same grounds and the first respondent had granted time till 5.8.2003. The appellant had further made a request on 19.8.2003 and the first respondent (Assistant Registrar) had also granted time upto 3.12.2003.</p><p style="text-align: justify;"> 3. The appellant herein filed their evidence in support of opposition on 25.3.2004 but without any request on Form TM-56 for extension of time after 3.12.2003. The first respondent passed the impugned order treating the opposition as abandoned under rule 50(2) of the Rules on 8.6.2004 and communicated the same by letter dated 25.8.2004. Aggrieved by the said order the appellants are before us on appeal.</p><p style="text-align: justify;"> 4. The second respondent had filed their counter statement denying the various allegations made in the grounds of appeal. The second respondent had also pleaded that no appeal against the order of abandonment will lie as the order was not final. The second respondent prayed that the appeal be dismissed with exemplary costs.</p><p style="text-align: justify;"> 5. The appeal was taken up for hearing in the Circuit Bench at Ahmedabad on 5.4.2007. We have heard Shri Akshay Vakil learned counsel for the appellant and Shri Y.J.Jasani learned counsel for the second respondent.</p><p style="text-align: justify;"> 6. The learned counsel for the appellant contended that rule 50(2) of the Rules is directory and not mandatory as held by this Board. He further submitted that a civil suit for infringement was pending between the appellant and the second respondent and that no order of injunction was granted.</p><p style="text-align: justify;"> 7. The appellant submitted that the notice of opposition was filed on 23.2.2001 by the appellants, a partnership firm. Meanwhile on 15.1.2002 as one of the partners Mr. Vinodbhai died the partnership firm had to be reconstituted on 19.1.2002. Mr. Vinodhbai the partner who was dealing with the business died and that some time was needed to collect documents to file evidence in support of notice of opposition. The appellant admitted that there was a delay due to the said reason and that evidence was filed on 25.3.2004. It was, however contended that the evidence was filed even before the order was passed by the Assistant Registrar on 8.6.2004. His main contention was that the Assistant Registrar had erred in treating the opposition as abandoned when the evidence was already before the Assistant Registrar. The other contention of the appellant was that on 9.7.2004, the second respondent had written a letter requesting the first respondent to dismiss the opposition as no evidence was filed. The appellant submitted that the order dated 8.6.2004 was communicated by the letter dated 25.8.2004 only after the second respondents letter dated 9.7.2004. He further submitted that evidence was already served on the respondent as early as 27.3.2004.</p><p style="text-align: justify;"> 8. The other submission by the appellant was that he had filed a review petition against the order of the Assistant Registrar on 3.11.2004 and as such the review petition was also pending as on date.</p><p style="text-align: justify;"> 9. The appellant had submitted his arguments in four fold.</p><p style="text-align: justify;"> a) Impugned order passed on 8.6.2004 when the evidence was filed and was on record as early as 25.3.2004.</p><p style="text-align: justify;"> b) Extension though sought was not considered.</p><p style="text-align: justify;"> c) No show cause notice issued before treating the opposition as abandoned.</p><p style="text-align: justify;"> d) Order passed on the request made by the applicant on 9.7.2004.</p><p style="text-align: justify;"> 10. The appellant relied on various judgments in support of his contention that the Registrar should have considered his evidence on record before passing an order, namely (1) Asian Paints Limited Vs. Registrar of Trade Marks 2005 (30) PTC 444 (IPAB) (2) Hindustan Lever Limited Vs. Sunrider Corporation 2006 (32) PTC 287 (IPAB) (3) 2007 PTC 1 Wyeth Holdings Vs. Controller General of Patents, Designs and Trade Marks (4) Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. O.A.12/2005/TM/AMD and Kailash Vs. Nankhu 2005 (4) SCC 480.</p><p style="text-align: justify;"> 11. Learned counsel for the second respondent submitted that the appeal is not maintainable as necessary changes in the partnership firm were not brought to the notice of the Registrar as contemplated in the provisions of Section 130 of the Act. The next contention was that with regard to the prayer in the appeal which were too wide which could not be considered. The second respondent drew our attention to the Trade Mark Journal Advertisement and the notice of opposition of the appellants (opponent) and submitted that the second respondent had made their application on 3.10l.1994 claiming user since 1986 whereas the appellant had filed the notice of opposition on 23.10.2001 stating that they had been using the mark for past many years and contended that the second respondents mark was in use prior to that of the appellants.</p><p style="text-align: justify;"> 12. The learned counsel for the second respondent also drew our attention to para 11 of the counter statement in Form TM â 6 filed before the Trade Marks Registry wherein they had stated that they have been using the mark since 1986 and that the mark had nothing to do with the quality or character of the goods.</p><p style="text-align: justify;"> 13. The second respondent also pointed out to the letter from the Trade Mark Registry dated 25.9.2003 granting extension up to 3.12.2003 wherein it was stated that âno further extension of time shall be granted.â</p><p style="text-align: justify;"> 14. Learned counsel for the second respondent relied on the judgment reported in (1) Videocon Narmada Electronics Ltd. Vs. Navbharat Ferro Alloys Ltd. 2005 (0) GLHEL 215835 (2) Champakbhai Parsottambhai Patel Vs. State of Gujarat and Ors AIR 2001 Gujarat 200 (3) Kailash Vs. Nanhku and Ors 2005 (4) SCC 480 and (4) AIR 1975 SC 915 Ramachandra Vs. Govind in support of his contention.</p><p style="text-align: justify;"> 15. We have carefully heard and considered the rival submissions. The main issue in such cases is whether the Registrar has powers to extend time to file evidence in support of application for registration or opposition of such application. We are of the view that the Registrar has powers to extend time on sufficient grounds. This Board has also held in various matters that the Registrar has powers to extend time. In this place, we shall quote the provisions of Section 131 of the Act.</p><p style="text-align: justify;"> Section 131 of the Trade Marks Act, 1999 provides as under:-</p><p style="text-align: justify;"> Extension of time.-(1) If the Registrar is satisfied, on application made to him in the prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the time for doing any act (not being a time expressly provided in this Act), whether the time so specified has expired or not, he may, subject to such conditions as he may think fit to impose, extend the time and inform the parties accordingly.</p><p style="text-align: justify;"> (2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the parties before disposing of an application for extension of time, and no appeal shall lie from any order of the Registrar under this section.</p><p style="text-align: justify;"> 16. On reading clause 1 of Section 131 of the Act it is clear that the Registrar, if satisfied, on application made in the prescribed manner along with the prescribed fee and if sufficient reasons are given to extend the time, the specified time has expired or not, he may grant time subject to such conditions. Here it would be relevant to mention the observations of the learned Judge of the Honble Gujarat High Court reported in 2007 PTC 1, Para 27 â â However, it is clarified that holding sub rule (2) of Rule 50 to be âdirectoryâ does not take away the powers of the Assistant Registrar to refuse extension of time in a given case when he finds that there is no substance in the grounds on which the extension of time is sought forâ.</p><p style="text-align: justify;"> 17. Even assuming that no extension was sought after 3.12.2003 and the question of extension does not arise, the Registrar had powers to refuse the evidence as no sufficient reasons have been pleaded to take the evidence on record as it was a delayed one and also that the evidence was filed much after the extended time.</p><p style="text-align: justify;"> 18. The appellants contention that evidence was filed even before the order was passed cannot be accepted. On this argument he relied on the observations of this Board made in OA/12/2005/TM/AMD Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. âThe Assistant Registrar had in fact granted time to the appellant to file their evidence and had communicated to the appellant after the due date. On perusal of the records we find that the appellant had also filed their evidence in support of opposition which was received by the Trade Marks Registry, the second respondent herein, but not considered by the Assistant Registrar on the date of passing of the order.â</p><p style="text-align: justify;"> 19. We are of the view that the above observation if considered in its proper content will not in any way help appellants. In fact in that case the evidence was filed before the extended time, despite it the Assistant Registrar had passed an order treating the opposition as abandoned, whereas in this case, we find that the time was granted from 1.7.2002 to 3.12.2003 on several applications on Form TM-56. The evidence in support of opposition was filed on 25.3.2004 even after three months of the extended date i.e. after 3.12.2003.</p><p style="text-align: justify;"> 20. The society at large has a vital interest in maintaining the purity of the Register. As held by the Delhi High Court in 2000 PTC 24 (Delhi) as also by this Board in other matters, we are also of the view that the Assistant Registrar has powers to grant extension of time for filing evidence in support of opposition. In fact this Board has held in various matters concerning this issue that the Registrar should have taken on record the evidence for arriving at a correct decision placing reliance on the documents.</p><p style="text-align: justify;"> 21. On considering the facts of the instant case, we are of the view that there is no infirmity in the orders of the Assistant Registrar. The Assistant Registrar had granted nearly a year and half for the appellant (opponent) to file their evidence. The appellant had not filed the evidence within the time so extended, but had filed evidence after a period of three months from the date of extended time without even a request to further extend the time on any reasonable ground. Appellant has been granted sufficient indulgence by the Registrar. Every application for extension of time was duly considered and allowed. Despite being informed that âno extension of time will be grantedâ. Appellant did not bother to file the evidence within the extended time.</p><p style="text-align: justify;"> 22. In view of the above, we are of the opinion that the order of the Assistant Registrar suffers no infirmity and hence the appeal is dismissed with no costs. The opposition No.AMD 58501 is dismissed and the application No.641893 in class 29 is directed to proceed to registration.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '1118044' ) ) $title_for_layout = 'Krishna Oil Industries, Gujarat Vs. 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Appellant' ) ) $desc = array( 'Judgement' => array( 'id' => '1118044', 'acts' => null, 'appealno' => 'OA/3/2005/TM/AMD ', 'appellant' => 'Krishna Oil Industries, Gujarat', 'authreffered' => null, 'casename' => 'Krishna Oil Industries, Gujarat Vs. Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => 'Akshay A Vakil, Y.J.Jasani.', 'counseldef' => null, 'court' => 'Intellectual Property Appellate Board IPAB', 'court_type' => 'TRI', 'decidedon' => '2007-05-09', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'THE HONOURABLE SHRI JUSTICE M.H.S. ANSARI, CHAIRMAN & THE HONOURABLE MS. S. USHA, TECHNICAL MEMBER', 'judgement' => '<p style="text-align: justify;">(Circuit Bench at Ahmedabad)<p style="text-align: justify;"> Hon'ble Ms.S.Usha, Technical Member: </p><p style="text-align: justify;"> Appeal challenging the order dated 8.6.2004 of the Assistant Registrar of Trade Marks, Ahmedabad in opposition No. AMD â 58501 against application No.641893 in class 29 of the trade mark âEKKA under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act) whereby treating the opposition as abandoned under rule 50(2) of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules).</p><p style="text-align: justify;"> 2. The second respondent herein filed an application for registration of the trade mark âEKKA under No.641893 in class 29 in respect of edible oil on 03.10.1994 claiming user since 1986. The said application was advertised in the Trade marks Journal No.1236 at page 3671 dated 1.12.2000. The appellant herein filed notice of opposition in Form TM-5 opposing the said registration on various grounds. The second respondent filed their counter statement on 19.10.2001. on 5.12.2001 the appellants were served with the copy of the counter statement along with a letter directing the appellants to file their evidence in support of opposition within two months i.e. on or before 5.2.2002. the appellants neither filed their evidence in support of opposition nor filed an application for extension of time to file evidence until 1.7.2002 and made a first request only then on form TM-56 for extension of time of six months. The first respondent had granted an extension of time of six months i.e. up to 5.8.2002 from 5.2.2002. The appellant subsequently made a request for extension on 5.8.2002 and the first respondent had granted time till 5.12.2002. The appellant further made a request on 27.12.2002 on the same grounds and the first respondent had granted time till 5.8.2003. The appellant had further made a request on 19.8.2003 and the first respondent (Assistant Registrar) had also granted time upto 3.12.2003.</p><p style="text-align: justify;"> 3. The appellant herein filed their evidence in support of opposition on 25.3.2004 but without any request on Form TM-56 for extension of time after 3.12.2003. The first respondent passed the impugned order treating the opposition as abandoned under rule 50(2) of the Rules on 8.6.2004 and communicated the same by letter dated 25.8.2004. Aggrieved by the said order the appellants are before us on appeal.</p><p style="text-align: justify;"> 4. The second respondent had filed their counter statement denying the various allegations made in the grounds of appeal. The second respondent had also pleaded that no appeal against the order of abandonment will lie as the order was not final. The second respondent prayed that the appeal be dismissed with exemplary costs.</p><p style="text-align: justify;"> 5. The appeal was taken up for hearing in the Circuit Bench at Ahmedabad on 5.4.2007. We have heard Shri Akshay Vakil learned counsel for the appellant and Shri Y.J.Jasani learned counsel for the second respondent.</p><p style="text-align: justify;"> 6. The learned counsel for the appellant contended that rule 50(2) of the Rules is directory and not mandatory as held by this Board. He further submitted that a civil suit for infringement was pending between the appellant and the second respondent and that no order of injunction was granted.</p><p style="text-align: justify;"> 7. The appellant submitted that the notice of opposition was filed on 23.2.2001 by the appellants, a partnership firm. Meanwhile on 15.1.2002 as one of the partners Mr. Vinodbhai died the partnership firm had to be reconstituted on 19.1.2002. Mr. Vinodhbai the partner who was dealing with the business died and that some time was needed to collect documents to file evidence in support of notice of opposition. The appellant admitted that there was a delay due to the said reason and that evidence was filed on 25.3.2004. It was, however contended that the evidence was filed even before the order was passed by the Assistant Registrar on 8.6.2004. His main contention was that the Assistant Registrar had erred in treating the opposition as abandoned when the evidence was already before the Assistant Registrar. The other contention of the appellant was that on 9.7.2004, the second respondent had written a letter requesting the first respondent to dismiss the opposition as no evidence was filed. The appellant submitted that the order dated 8.6.2004 was communicated by the letter dated 25.8.2004 only after the second respondents letter dated 9.7.2004. He further submitted that evidence was already served on the respondent as early as 27.3.2004.</p><p style="text-align: justify;"> 8. The other submission by the appellant was that he had filed a review petition against the order of the Assistant Registrar on 3.11.2004 and as such the review petition was also pending as on date.</p><p style="text-align: justify;"> 9. The appellant had submitted his arguments in four fold.</p><p style="text-align: justify;"> a) Impugned order passed on 8.6.2004 when the evidence was filed and was on record as early as 25.3.2004.</p><p style="text-align: justify;"> b) Extension though sought was not considered.</p><p style="text-align: justify;"> c) No show cause notice issued before treating the opposition as abandoned.</p><p style="text-align: justify;"> d) Order passed on the request made by the applicant on 9.7.2004.</p><p style="text-align: justify;"> 10. The appellant relied on various judgments in support of his contention that the Registrar should have considered his evidence on record before passing an order, namely (1) Asian Paints Limited Vs. Registrar of Trade Marks 2005 (30) PTC 444 (IPAB) (2) Hindustan Lever Limited Vs. Sunrider Corporation 2006 (32) PTC 287 (IPAB) (3) 2007 PTC 1 Wyeth Holdings Vs. Controller General of Patents, Designs and Trade Marks (4) Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. O.A.12/2005/TM/AMD and Kailash Vs. Nankhu 2005 (4) SCC 480.</p><p style="text-align: justify;"> 11. Learned counsel for the second respondent submitted that the appeal is not maintainable as necessary changes in the partnership firm were not brought to the notice of the Registrar as contemplated in the provisions of Section 130 of the Act. The next contention was that with regard to the prayer in the appeal which were too wide which could not be considered. The second respondent drew our attention to the Trade Mark Journal Advertisement and the notice of opposition of the appellants (opponent) and submitted that the second respondent had made their application on 3.10l.1994 claiming user since 1986 whereas the appellant had filed the notice of opposition on 23.10.2001 stating that they had been using the mark for past many years and contended that the second respondents mark was in use prior to that of the appellants.</p><p style="text-align: justify;"> 12. The learned counsel for the second respondent also drew our attention to para 11 of the counter statement in Form TM â 6 filed before the Trade Marks Registry wherein they had stated that they have been using the mark since 1986 and that the mark had nothing to do with the quality or character of the goods.</p><p style="text-align: justify;"> 13. The second respondent also pointed out to the letter from the Trade Mark Registry dated 25.9.2003 granting extension up to 3.12.2003 wherein it was stated that âno further extension of time shall be granted.â</p><p style="text-align: justify;"> 14. Learned counsel for the second respondent relied on the judgment reported in (1) Videocon Narmada Electronics Ltd. Vs. Navbharat Ferro Alloys Ltd. 2005 (0) GLHEL 215835 (2) Champakbhai Parsottambhai Patel Vs. State of Gujarat and Ors AIR 2001 Gujarat 200 (3) Kailash Vs. Nanhku and Ors 2005 (4) SCC 480 and (4) AIR 1975 SC 915 Ramachandra Vs. Govind in support of his contention.</p><p style="text-align: justify;"> 15. We have carefully heard and considered the rival submissions. The main issue in such cases is whether the Registrar has powers to extend time to file evidence in support of application for registration or opposition of such application. We are of the view that the Registrar has powers to extend time on sufficient grounds. This Board has also held in various matters that the Registrar has powers to extend time. In this place, we shall quote the provisions of Section 131 of the Act.</p><p style="text-align: justify;"> Section 131 of the Trade Marks Act, 1999 provides as under:-</p><p style="text-align: justify;"> Extension of time.-(1) If the Registrar is satisfied, on application made to him in the prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the time for doing any act (not being a time expressly provided in this Act), whether the time so specified has expired or not, he may, subject to such conditions as he may think fit to impose, extend the time and inform the parties accordingly.</p><p style="text-align: justify;"> (2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the parties before disposing of an application for extension of time, and no appeal shall lie from any order of the Registrar under this section.</p><p style="text-align: justify;"> 16. On reading clause 1 of Section 131 of the Act it is clear that the Registrar, if satisfied, on application made in the prescribed manner along with the prescribed fee and if sufficient reasons are given to extend the time, the specified time has expired or not, he may grant time subject to such conditions. Here it would be relevant to mention the observations of the learned Judge of the Honble Gujarat High Court reported in 2007 PTC 1, Para 27 â â However, it is clarified that holding sub rule (2) of Rule 50 to be âdirectoryâ does not take away the powers of the Assistant Registrar to refuse extension of time in a given case when he finds that there is no substance in the grounds on which the extension of time is sought forâ.</p><p style="text-align: justify;"> 17. Even assuming that no extension was sought after 3.12.2003 and the question of extension does not arise, the Registrar had powers to refuse the evidence as no sufficient reasons have been pleaded to take the evidence on record as it was a delayed one and also that the evidence was filed much after the extended time.</p><p style="text-align: justify;"> 18. The appellants contention that evidence was filed even before the order was passed cannot be accepted. On this argument he relied on the observations of this Board made in OA/12/2005/TM/AMD Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. âThe Assistant Registrar had in fact granted time to the appellant to file their evidence and had communicated to the appellant after the due date. On perusal of the records we find that the appellant had also filed their evidence in support of opposition which was received by the Trade Marks Registry, the second respondent herein, but not considered by the Assistant Registrar on the date of passing of the order.â</p><p style="text-align: justify;"> 19. We are of the view that the above observation if considered in its proper content will not in any way help appellants. In fact in that case the evidence was filed before the extended time, despite it the Assistant Registrar had passed an order treating the opposition as abandoned, whereas in this case, we find that the time was granted from 1.7.2002 to 3.12.2003 on several applications on Form TM-56. The evidence in support of opposition was filed on 25.3.2004 even after three months of the extended date i.e. after 3.12.2003.</p><p style="text-align: justify;"> 20. The society at large has a vital interest in maintaining the purity of the Register. As held by the Delhi High Court in 2000 PTC 24 (Delhi) as also by this Board in other matters, we are also of the view that the Assistant Registrar has powers to grant extension of time for filing evidence in support of opposition. In fact this Board has held in various matters concerning this issue that the Registrar should have taken on record the evidence for arriving at a correct decision placing reliance on the documents.</p><p style="text-align: justify;"> 21. On considering the facts of the instant case, we are of the view that there is no infirmity in the orders of the Assistant Registrar. The Assistant Registrar had granted nearly a year and half for the appellant (opponent) to file their evidence. The appellant had not filed the evidence within the time so extended, but had filed evidence after a period of three months from the date of extended time without even a request to further extend the time on any reasonable ground. Appellant has been granted sufficient indulgence by the Registrar. Every application for extension of time was duly considered and allowed. Despite being informed that âno extension of time will be grantedâ. Appellant did not bother to file the evidence within the extended time.</p><p style="text-align: justify;"> 22. In view of the above, we are of the opinion that the order of the Assistant Registrar suffers no infirmity and hence the appeal is dismissed with no costs. The opposition No.AMD 58501 is dismissed and the application No.641893 in class 29 is directed to proceed to registration.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'sub' => null, 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '1118044' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/'include - APP/View/Case/meta.ctp, line 36 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
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Ltd Vs', (int) 11 => 'Sanyo Ceratiles Pvt. Ltd.', (int) 12 => 'Kailash Vs', (int) 13 => 'Registrar', (int) 14 => 'the Trade Mark Journal Advertisement', (int) 15 => 'the Trade Marks Registry', (int) 16 => 'the Trade Mark Registry', (int) 17 => 'Videocon Narmada Electronics Ltd.', (int) 18 => 'Ors AIR', (int) 19 => 'Kailash Vs', (int) 20 => 'AIR 1975', (int) 21 => 'SC', (int) 22 => 'Ramachandra Vs', (int) 23 => 'Registrar', (int) 24 => 'Registrar', (int) 25 => 'Board', (int) 26 => 'Registrar', (int) 27 => 'Registrar', (int) 28 => 'Registrar', (int) 29 => 'Registrar', (int) 30 => 'Registrar', (int) 31 => 'the Honble Gujarat High Court', (int) 32 => 'Registrar', (int) 33 => 'Board', (int) 34 => 'TM', (int) 35 => 'Sanya Electric Co. 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Appellant' ) ), 'desc' => array( 'Judgement' => array( 'id' => '1118044', 'acts' => null, 'appealno' => 'OA/3/2005/TM/AMD ', 'appellant' => 'Krishna Oil Industries, Gujarat', 'authreffered' => null, 'casename' => 'Krishna Oil Industries, Gujarat Vs. Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => 'Akshay A Vakil, Y.J.Jasani.', 'counseldef' => null, 'court' => 'Intellectual Property Appellate Board IPAB', 'court_type' => 'TRI', 'decidedon' => '2007-05-09', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'THE HONOURABLE SHRI JUSTICE M.H.S. ANSARI, CHAIRMAN & THE HONOURABLE MS. S. USHA, TECHNICAL MEMBER', 'judgement' => '<p style="text-align: justify;">(Circuit Bench at Ahmedabad)<p style="text-align: justify;"> Hon'ble Ms.S.Usha, Technical Member: </p><p style="text-align: justify;"> Appeal challenging the order dated 8.6.2004 of the Assistant Registrar of Trade Marks, Ahmedabad in opposition No. AMD â 58501 against application No.641893 in class 29 of the trade mark âEKKA under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act) whereby treating the opposition as abandoned under rule 50(2) of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules).</p><p style="text-align: justify;"> 2. The second respondent herein filed an application for registration of the trade mark âEKKA under No.641893 in class 29 in respect of edible oil on 03.10.1994 claiming user since 1986. The said application was advertised in the Trade marks Journal No.1236 at page 3671 dated 1.12.2000. The appellant herein filed notice of opposition in Form TM-5 opposing the said registration on various grounds. The second respondent filed their counter statement on 19.10.2001. on 5.12.2001 the appellants were served with the copy of the counter statement along with a letter directing the appellants to file their evidence in support of opposition within two months i.e. on or before 5.2.2002. the appellants neither filed their evidence in support of opposition nor filed an application for extension of time to file evidence until 1.7.2002 and made a first request only then on form TM-56 for extension of time of six months. The first respondent had granted an extension of time of six months i.e. up to 5.8.2002 from 5.2.2002. The appellant subsequently made a request for extension on 5.8.2002 and the first respondent had granted time till 5.12.2002. The appellant further made a request on 27.12.2002 on the same grounds and the first respondent had granted time till 5.8.2003. The appellant had further made a request on 19.8.2003 and the first respondent (Assistant Registrar) had also granted time upto 3.12.2003.</p><p style="text-align: justify;"> 3. The appellant herein filed their evidence in support of opposition on 25.3.2004 but without any request on Form TM-56 for extension of time after 3.12.2003. The first respondent passed the impugned order treating the opposition as abandoned under rule 50(2) of the Rules on 8.6.2004 and communicated the same by letter dated 25.8.2004. Aggrieved by the said order the appellants are before us on appeal.</p><p style="text-align: justify;"> 4. The second respondent had filed their counter statement denying the various allegations made in the grounds of appeal. The second respondent had also pleaded that no appeal against the order of abandonment will lie as the order was not final. The second respondent prayed that the appeal be dismissed with exemplary costs.</p><p style="text-align: justify;"> 5. The appeal was taken up for hearing in the Circuit Bench at Ahmedabad on 5.4.2007. We have heard Shri Akshay Vakil learned counsel for the appellant and Shri Y.J.Jasani learned counsel for the second respondent.</p><p style="text-align: justify;"> 6. The learned counsel for the appellant contended that rule 50(2) of the Rules is directory and not mandatory as held by this Board. He further submitted that a civil suit for infringement was pending between the appellant and the second respondent and that no order of injunction was granted.</p><p style="text-align: justify;"> 7. The appellant submitted that the notice of opposition was filed on 23.2.2001 by the appellants, a partnership firm. Meanwhile on 15.1.2002 as one of the partners Mr. Vinodbhai died the partnership firm had to be reconstituted on 19.1.2002. Mr. Vinodhbai the partner who was dealing with the business died and that some time was needed to collect documents to file evidence in support of notice of opposition. The appellant admitted that there was a delay due to the said reason and that evidence was filed on 25.3.2004. It was, however contended that the evidence was filed even before the order was passed by the Assistant Registrar on 8.6.2004. His main contention was that the Assistant Registrar had erred in treating the opposition as abandoned when the evidence was already before the Assistant Registrar. The other contention of the appellant was that on 9.7.2004, the second respondent had written a letter requesting the first respondent to dismiss the opposition as no evidence was filed. The appellant submitted that the order dated 8.6.2004 was communicated by the letter dated 25.8.2004 only after the second respondents letter dated 9.7.2004. He further submitted that evidence was already served on the respondent as early as 27.3.2004.</p><p style="text-align: justify;"> 8. The other submission by the appellant was that he had filed a review petition against the order of the Assistant Registrar on 3.11.2004 and as such the review petition was also pending as on date.</p><p style="text-align: justify;"> 9. The appellant had submitted his arguments in four fold.</p><p style="text-align: justify;"> a) Impugned order passed on 8.6.2004 when the evidence was filed and was on record as early as 25.3.2004.</p><p style="text-align: justify;"> b) Extension though sought was not considered.</p><p style="text-align: justify;"> c) No show cause notice issued before treating the opposition as abandoned.</p><p style="text-align: justify;"> d) Order passed on the request made by the applicant on 9.7.2004.</p><p style="text-align: justify;"> 10. The appellant relied on various judgments in support of his contention that the Registrar should have considered his evidence on record before passing an order, namely (1) Asian Paints Limited Vs. Registrar of Trade Marks 2005 (30) PTC 444 (IPAB) (2) Hindustan Lever Limited Vs. Sunrider Corporation 2006 (32) PTC 287 (IPAB) (3) 2007 PTC 1 Wyeth Holdings Vs. Controller General of Patents, Designs and Trade Marks (4) Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. O.A.12/2005/TM/AMD and Kailash Vs. Nankhu 2005 (4) SCC 480.</p><p style="text-align: justify;"> 11. Learned counsel for the second respondent submitted that the appeal is not maintainable as necessary changes in the partnership firm were not brought to the notice of the Registrar as contemplated in the provisions of Section 130 of the Act. The next contention was that with regard to the prayer in the appeal which were too wide which could not be considered. The second respondent drew our attention to the Trade Mark Journal Advertisement and the notice of opposition of the appellants (opponent) and submitted that the second respondent had made their application on 3.10l.1994 claiming user since 1986 whereas the appellant had filed the notice of opposition on 23.10.2001 stating that they had been using the mark for past many years and contended that the second respondents mark was in use prior to that of the appellants.</p><p style="text-align: justify;"> 12. The learned counsel for the second respondent also drew our attention to para 11 of the counter statement in Form TM â 6 filed before the Trade Marks Registry wherein they had stated that they have been using the mark since 1986 and that the mark had nothing to do with the quality or character of the goods.</p><p style="text-align: justify;"> 13. The second respondent also pointed out to the letter from the Trade Mark Registry dated 25.9.2003 granting extension up to 3.12.2003 wherein it was stated that âno further extension of time shall be granted.â</p><p style="text-align: justify;"> 14. Learned counsel for the second respondent relied on the judgment reported in (1) Videocon Narmada Electronics Ltd. Vs. Navbharat Ferro Alloys Ltd. 2005 (0) GLHEL 215835 (2) Champakbhai Parsottambhai Patel Vs. State of Gujarat and Ors AIR 2001 Gujarat 200 (3) Kailash Vs. Nanhku and Ors 2005 (4) SCC 480 and (4) AIR 1975 SC 915 Ramachandra Vs. Govind in support of his contention.</p><p style="text-align: justify;"> 15. We have carefully heard and considered the rival submissions. The main issue in such cases is whether the Registrar has powers to extend time to file evidence in support of application for registration or opposition of such application. We are of the view that the Registrar has powers to extend time on sufficient grounds. This Board has also held in various matters that the Registrar has powers to extend time. In this place, we shall quote the provisions of Section 131 of the Act.</p><p style="text-align: justify;"> Section 131 of the Trade Marks Act, 1999 provides as under:-</p><p style="text-align: justify;"> Extension of time.-(1) If the Registrar is satisfied, on application made to him in the prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the time for doing any act (not being a time expressly provided in this Act), whether the time so specified has expired or not, he may, subject to such conditions as he may think fit to impose, extend the time and inform the parties accordingly.</p><p style="text-align: justify;"> (2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the parties before disposing of an application for extension of time, and no appeal shall lie from any order of the Registrar under this section.</p><p style="text-align: justify;"> 16. On reading clause 1 of Section 131 of the Act it is clear that the Registrar, if satisfied, on application made in the prescribed manner along with the prescribed fee and if sufficient reasons are given to extend the time, the specified time has expired or not, he may grant time subject to such conditions. Here it would be relevant to mention the observations of the learned Judge of the Honble Gujarat High Court reported in 2007 PTC 1, Para 27 â â However, it is clarified that holding sub rule (2) of Rule 50 to be âdirectoryâ does not take away the powers of the Assistant Registrar to refuse extension of time in a given case when he finds that there is no substance in the grounds on which the extension of time is sought forâ.</p><p style="text-align: justify;"> 17. Even assuming that no extension was sought after 3.12.2003 and the question of extension does not arise, the Registrar had powers to refuse the evidence as no sufficient reasons have been pleaded to take the evidence on record as it was a delayed one and also that the evidence was filed much after the extended time.</p><p style="text-align: justify;"> 18. The appellants contention that evidence was filed even before the order was passed cannot be accepted. On this argument he relied on the observations of this Board made in OA/12/2005/TM/AMD Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. âThe Assistant Registrar had in fact granted time to the appellant to file their evidence and had communicated to the appellant after the due date. On perusal of the records we find that the appellant had also filed their evidence in support of opposition which was received by the Trade Marks Registry, the second respondent herein, but not considered by the Assistant Registrar on the date of passing of the order.â</p><p style="text-align: justify;"> 19. We are of the view that the above observation if considered in its proper content will not in any way help appellants. In fact in that case the evidence was filed before the extended time, despite it the Assistant Registrar had passed an order treating the opposition as abandoned, whereas in this case, we find that the time was granted from 1.7.2002 to 3.12.2003 on several applications on Form TM-56. The evidence in support of opposition was filed on 25.3.2004 even after three months of the extended date i.e. after 3.12.2003.</p><p style="text-align: justify;"> 20. The society at large has a vital interest in maintaining the purity of the Register. As held by the Delhi High Court in 2000 PTC 24 (Delhi) as also by this Board in other matters, we are also of the view that the Assistant Registrar has powers to grant extension of time for filing evidence in support of opposition. In fact this Board has held in various matters concerning this issue that the Registrar should have taken on record the evidence for arriving at a correct decision placing reliance on the documents.</p><p style="text-align: justify;"> 21. On considering the facts of the instant case, we are of the view that there is no infirmity in the orders of the Assistant Registrar. The Assistant Registrar had granted nearly a year and half for the appellant (opponent) to file their evidence. The appellant had not filed the evidence within the time so extended, but had filed evidence after a period of three months from the date of extended time without even a request to further extend the time on any reasonable ground. Appellant has been granted sufficient indulgence by the Registrar. Every application for extension of time was duly considered and allowed. Despite being informed that âno extension of time will be grantedâ. Appellant did not bother to file the evidence within the extended time.</p><p style="text-align: justify;"> 22. In view of the above, we are of the opinion that the order of the Assistant Registrar suffers no infirmity and hence the appeal is dismissed with no costs. The opposition No.AMD 58501 is dismissed and the application No.641893 in class 29 is directed to proceed to registration.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'sub' => null, 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '1118044' ) ) $title_for_layout = 'Krishna Oil Industries, Gujarat Vs. Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'Section 130', (int) 1 => 'Section 131 of the Act', (int) 2 => 'Section 131 of the Act' ), 'PERSON' => array( (int) 0 => 'S.Usha', (int) 1 => 'herein', (int) 2 => 'Registrar', (int) 3 => 'Shri Akshay Vakil', (int) 4 => 'Shri Y.J.Jasani', (int) 5 => 'Vinodbhai', (int) 6 => 'Vinodhbai', (int) 7 => 'Registrar', (int) 8 => 'Registrar', (int) 9 => 'Registrar', (int) 10 => 'Navbharat', (int) 11 => 'Champakbhai Parsottambhai Patel Vs', (int) 12 => 'Nanhku', (int) 13 => 'Registrar', (int) 14 => 'Registrar', (int) 15 => 'Registrar', (int) 16 => 'Registrar', (int) 17 => 'Registrar', (int) 18 => 'Registrar', (int) 19 => 'Registrar' ), 'CARDINAL' => array( (int) 0 => '8.6.2004', (int) 1 => '58501', (int) 2 => '29', (int) 3 => '50(2', (int) 4 => '2', (int) 5 => '29', (int) 6 => '1.12.2000', (int) 7 => '5.12.2001', (int) 8 => '5.2.2002', (int) 9 => 'up to 5.8.2002', (int) 10 => '5.2.2002', (int) 11 => '5.8.2002', (int) 12 => '5.12.2002', (int) 13 => '3', (int) 14 => '50(2', (int) 15 => '4.', (int) 16 => '5.', (int) 17 => '6.', (int) 18 => '50(2', (int) 19 => '23.2.2001', (int) 20 => '15.1.2002', (int) 21 => '9.7.2004', (int) 22 => '9.7.2004', (int) 23 => '8', (int) 24 => '9', (int) 25 => 'four', (int) 26 => '10', (int) 27 => '1', (int) 28 => '30', (int) 29 => '2', (int) 30 => '32', (int) 31 => '287', (int) 32 => '1', (int) 33 => '4', (int) 34 => '4', (int) 35 => '480', (int) 36 => '11', (int) 37 => '3.10l.1994', (int) 38 => '23.10.2001', (int) 39 => '12', (int) 40 => '11', (int) 41 => '6', (int) 42 => '13', (int) 43 => '25.9.2003', (int) 44 => '3.12.2003', (int) 45 => '1', (int) 46 => '0', (int) 47 => '2', (int) 48 => '200', (int) 49 => '3', (int) 50 => '4', (int) 51 => '4', (int) 52 => '915', (int) 53 => '15', (int) 54 => '2', (int) 55 => '1', (int) 56 => '16', (int) 57 => '1', (int) 58 => '2', (int) 59 => '17', (int) 60 => '18', (int) 61 => '19', (int) 62 => '1.7.2002', (int) 63 => '3.12.2003', (int) 64 => '20', (int) 65 => '21', (int) 66 => 'half', (int) 67 => '22', (int) 68 => '29' ), 'ORG' => array( (int) 0 => 'AMD', (int) 1 => 'the Trade Marks Act', (int) 2 => 'the Trade Marks Rules', (int) 3 => 'No.641893', (int) 4 => 'the Trade marks Journal', (int) 5 => 'Registrar', (int) 6 => 'IPAB', (int) 7 => 'Hindustan Lever Limited Vs', (int) 8 => 'Sunrider Corporation 2006', (int) 9 => 'IPAB', (int) 10 => 'Sanya Electric Co. Ltd Vs', (int) 11 => 'Sanyo Ceratiles Pvt. Ltd.', (int) 12 => 'Kailash Vs', (int) 13 => 'Registrar', (int) 14 => 'the Trade Mark Journal Advertisement', (int) 15 => 'the Trade Marks Registry', (int) 16 => 'the Trade Mark Registry', (int) 17 => 'Videocon Narmada Electronics Ltd.', (int) 18 => 'Ors AIR', (int) 19 => 'Kailash Vs', (int) 20 => 'AIR 1975', (int) 21 => 'SC', (int) 22 => 'Ramachandra Vs', (int) 23 => 'Registrar', (int) 24 => 'Registrar', (int) 25 => 'Board', (int) 26 => 'Registrar', (int) 27 => 'Registrar', (int) 28 => 'Registrar', (int) 29 => 'Registrar', (int) 30 => 'Registrar', (int) 31 => 'the Honble Gujarat High Court', (int) 32 => 'Registrar', (int) 33 => 'Board', (int) 34 => 'TM', (int) 35 => 'Sanya Electric Co. Ltd Vs', (int) 36 => 'Sanyo Ceratiles Pvt', (int) 37 => 'the Trade Marks Registry', (int) 38 => 'Register', (int) 39 => 'the Delhi High Court', (int) 40 => 'Board', (int) 41 => 'Board', (int) 42 => 'Registrar', (int) 43 => 'Registrar', (int) 44 => 'Registrar' ), 'DATE' => array( (int) 0 => '1999', (int) 1 => '2002', (int) 2 => '1986', (int) 3 => '3671', (int) 4 => '19.10.2001', (int) 5 => 'two months', (int) 6 => '1.7.2002', (int) 7 => 'six months', (int) 8 => 'six months', (int) 9 => '27.12.2002', (int) 10 => '5.8.2003', (int) 11 => '19.8.2003', (int) 12 => '25.3.2004', (int) 13 => '8.6.2004', (int) 14 => '25.8.2004', (int) 15 => '19.1.2002', (int) 16 => '25.3.2004', (int) 17 => '8.6.2004', (int) 18 => '8.6.2004', (int) 19 => '25.8.2004', (int) 20 => '8.6.2004', (int) 21 => '9.7.2004.', (int) 22 => '2005', (int) 23 => '3) 2007', (int) 24 => '1986', (int) 25 => 'past many years', (int) 26 => '1986', (int) 27 => '14', (int) 28 => '2005', (int) 29 => '215835', (int) 30 => '2001', (int) 31 => '1999', (int) 32 => '2007', (int) 33 => '25.3.2004', (int) 34 => 'three months', (int) 35 => '2000', (int) 36 => 'nearly a year and', (int) 37 => 'three months' ), 'ORDINAL' => array( (int) 0 => 'second', (int) 1 => 'second', (int) 2 => 'first', (int) 3 => 'first', (int) 4 => 'first', (int) 5 => 'first', (int) 6 => 'first', (int) 7 => 'first', (int) 8 => 'second', (int) 9 => 'second', (int) 10 => 'second', (int) 11 => 'second', (int) 12 => 'second', (int) 13 => 'second', (int) 14 => 'first', (int) 15 => 'second', (int) 16 => 'second', (int) 17 => 'second', (int) 18 => 'second', (int) 19 => 'second', (int) 20 => 'second', (int) 21 => 'second', (int) 22 => 'second', (int) 23 => 'second' ), 'PRODUCT' => array( (int) 0 => 'Form TM-56' ), 'NORP' => array( (int) 0 => 'Rules', (int) 1 => 'Asian', (int) 2 => 'Designs' ), 'GPE' => array( (int) 0 => 'Gujarat', (int) 1 => 'Gujarat', (int) 2 => 'Delhi' ), 'EVENT' => array( (int) 0 => 'Ors 2005' ), 'LOC' => array( (int) 0 => 'grantedâ. Appellant' ) ) $desc = array( 'Judgement' => array( 'id' => '1118044', 'acts' => null, 'appealno' => 'OA/3/2005/TM/AMD ', 'appellant' => 'Krishna Oil Industries, Gujarat', 'authreffered' => null, 'casename' => 'Krishna Oil Industries, Gujarat Vs. Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'casenote' => '', 'caseanalysis' => null, 'casesref' => null, 'citingcases' => null, 'counselplain' => 'Akshay A Vakil, Y.J.Jasani.', 'counseldef' => null, 'court' => 'Intellectual Property Appellate Board IPAB', 'court_type' => 'TRI', 'decidedon' => '2007-05-09', 'deposition' => null, 'favorof' => null, 'findings' => null, 'judge' => 'THE HONOURABLE SHRI JUSTICE M.H.S. ANSARI, CHAIRMAN & THE HONOURABLE MS. S. USHA, TECHNICAL MEMBER', 'judgement' => '<p style="text-align: justify;">(Circuit Bench at Ahmedabad)<p style="text-align: justify;"> Hon'ble Ms.S.Usha, Technical Member: </p><p style="text-align: justify;"> Appeal challenging the order dated 8.6.2004 of the Assistant Registrar of Trade Marks, Ahmedabad in opposition No. AMD â 58501 against application No.641893 in class 29 of the trade mark âEKKA under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act) whereby treating the opposition as abandoned under rule 50(2) of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules).</p><p style="text-align: justify;"> 2. The second respondent herein filed an application for registration of the trade mark âEKKA under No.641893 in class 29 in respect of edible oil on 03.10.1994 claiming user since 1986. The said application was advertised in the Trade marks Journal No.1236 at page 3671 dated 1.12.2000. The appellant herein filed notice of opposition in Form TM-5 opposing the said registration on various grounds. The second respondent filed their counter statement on 19.10.2001. on 5.12.2001 the appellants were served with the copy of the counter statement along with a letter directing the appellants to file their evidence in support of opposition within two months i.e. on or before 5.2.2002. the appellants neither filed their evidence in support of opposition nor filed an application for extension of time to file evidence until 1.7.2002 and made a first request only then on form TM-56 for extension of time of six months. The first respondent had granted an extension of time of six months i.e. up to 5.8.2002 from 5.2.2002. The appellant subsequently made a request for extension on 5.8.2002 and the first respondent had granted time till 5.12.2002. The appellant further made a request on 27.12.2002 on the same grounds and the first respondent had granted time till 5.8.2003. The appellant had further made a request on 19.8.2003 and the first respondent (Assistant Registrar) had also granted time upto 3.12.2003.</p><p style="text-align: justify;"> 3. The appellant herein filed their evidence in support of opposition on 25.3.2004 but without any request on Form TM-56 for extension of time after 3.12.2003. The first respondent passed the impugned order treating the opposition as abandoned under rule 50(2) of the Rules on 8.6.2004 and communicated the same by letter dated 25.8.2004. Aggrieved by the said order the appellants are before us on appeal.</p><p style="text-align: justify;"> 4. The second respondent had filed their counter statement denying the various allegations made in the grounds of appeal. The second respondent had also pleaded that no appeal against the order of abandonment will lie as the order was not final. The second respondent prayed that the appeal be dismissed with exemplary costs.</p><p style="text-align: justify;"> 5. The appeal was taken up for hearing in the Circuit Bench at Ahmedabad on 5.4.2007. We have heard Shri Akshay Vakil learned counsel for the appellant and Shri Y.J.Jasani learned counsel for the second respondent.</p><p style="text-align: justify;"> 6. The learned counsel for the appellant contended that rule 50(2) of the Rules is directory and not mandatory as held by this Board. He further submitted that a civil suit for infringement was pending between the appellant and the second respondent and that no order of injunction was granted.</p><p style="text-align: justify;"> 7. The appellant submitted that the notice of opposition was filed on 23.2.2001 by the appellants, a partnership firm. Meanwhile on 15.1.2002 as one of the partners Mr. Vinodbhai died the partnership firm had to be reconstituted on 19.1.2002. Mr. Vinodhbai the partner who was dealing with the business died and that some time was needed to collect documents to file evidence in support of notice of opposition. The appellant admitted that there was a delay due to the said reason and that evidence was filed on 25.3.2004. It was, however contended that the evidence was filed even before the order was passed by the Assistant Registrar on 8.6.2004. His main contention was that the Assistant Registrar had erred in treating the opposition as abandoned when the evidence was already before the Assistant Registrar. The other contention of the appellant was that on 9.7.2004, the second respondent had written a letter requesting the first respondent to dismiss the opposition as no evidence was filed. The appellant submitted that the order dated 8.6.2004 was communicated by the letter dated 25.8.2004 only after the second respondents letter dated 9.7.2004. He further submitted that evidence was already served on the respondent as early as 27.3.2004.</p><p style="text-align: justify;"> 8. The other submission by the appellant was that he had filed a review petition against the order of the Assistant Registrar on 3.11.2004 and as such the review petition was also pending as on date.</p><p style="text-align: justify;"> 9. The appellant had submitted his arguments in four fold.</p><p style="text-align: justify;"> a) Impugned order passed on 8.6.2004 when the evidence was filed and was on record as early as 25.3.2004.</p><p style="text-align: justify;"> b) Extension though sought was not considered.</p><p style="text-align: justify;"> c) No show cause notice issued before treating the opposition as abandoned.</p><p style="text-align: justify;"> d) Order passed on the request made by the applicant on 9.7.2004.</p><p style="text-align: justify;"> 10. The appellant relied on various judgments in support of his contention that the Registrar should have considered his evidence on record before passing an order, namely (1) Asian Paints Limited Vs. Registrar of Trade Marks 2005 (30) PTC 444 (IPAB) (2) Hindustan Lever Limited Vs. Sunrider Corporation 2006 (32) PTC 287 (IPAB) (3) 2007 PTC 1 Wyeth Holdings Vs. Controller General of Patents, Designs and Trade Marks (4) Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. O.A.12/2005/TM/AMD and Kailash Vs. Nankhu 2005 (4) SCC 480.</p><p style="text-align: justify;"> 11. Learned counsel for the second respondent submitted that the appeal is not maintainable as necessary changes in the partnership firm were not brought to the notice of the Registrar as contemplated in the provisions of Section 130 of the Act. The next contention was that with regard to the prayer in the appeal which were too wide which could not be considered. The second respondent drew our attention to the Trade Mark Journal Advertisement and the notice of opposition of the appellants (opponent) and submitted that the second respondent had made their application on 3.10l.1994 claiming user since 1986 whereas the appellant had filed the notice of opposition on 23.10.2001 stating that they had been using the mark for past many years and contended that the second respondents mark was in use prior to that of the appellants.</p><p style="text-align: justify;"> 12. The learned counsel for the second respondent also drew our attention to para 11 of the counter statement in Form TM â 6 filed before the Trade Marks Registry wherein they had stated that they have been using the mark since 1986 and that the mark had nothing to do with the quality or character of the goods.</p><p style="text-align: justify;"> 13. The second respondent also pointed out to the letter from the Trade Mark Registry dated 25.9.2003 granting extension up to 3.12.2003 wherein it was stated that âno further extension of time shall be granted.â</p><p style="text-align: justify;"> 14. Learned counsel for the second respondent relied on the judgment reported in (1) Videocon Narmada Electronics Ltd. Vs. Navbharat Ferro Alloys Ltd. 2005 (0) GLHEL 215835 (2) Champakbhai Parsottambhai Patel Vs. State of Gujarat and Ors AIR 2001 Gujarat 200 (3) Kailash Vs. Nanhku and Ors 2005 (4) SCC 480 and (4) AIR 1975 SC 915 Ramachandra Vs. Govind in support of his contention.</p><p style="text-align: justify;"> 15. We have carefully heard and considered the rival submissions. The main issue in such cases is whether the Registrar has powers to extend time to file evidence in support of application for registration or opposition of such application. We are of the view that the Registrar has powers to extend time on sufficient grounds. This Board has also held in various matters that the Registrar has powers to extend time. In this place, we shall quote the provisions of Section 131 of the Act.</p><p style="text-align: justify;"> Section 131 of the Trade Marks Act, 1999 provides as under:-</p><p style="text-align: justify;"> Extension of time.-(1) If the Registrar is satisfied, on application made to him in the prescribed manner and accompanied by the prescribed fee, that there is sufficient cause for extending the time for doing any act (not being a time expressly provided in this Act), whether the time so specified has expired or not, he may, subject to such conditions as he may think fit to impose, extend the time and inform the parties accordingly.</p><p style="text-align: justify;"> (2) Nothing in sub-section (1) shall be deemed to require the Registrar to hear the parties before disposing of an application for extension of time, and no appeal shall lie from any order of the Registrar under this section.</p><p style="text-align: justify;"> 16. On reading clause 1 of Section 131 of the Act it is clear that the Registrar, if satisfied, on application made in the prescribed manner along with the prescribed fee and if sufficient reasons are given to extend the time, the specified time has expired or not, he may grant time subject to such conditions. Here it would be relevant to mention the observations of the learned Judge of the Honble Gujarat High Court reported in 2007 PTC 1, Para 27 â â However, it is clarified that holding sub rule (2) of Rule 50 to be âdirectoryâ does not take away the powers of the Assistant Registrar to refuse extension of time in a given case when he finds that there is no substance in the grounds on which the extension of time is sought forâ.</p><p style="text-align: justify;"> 17. Even assuming that no extension was sought after 3.12.2003 and the question of extension does not arise, the Registrar had powers to refuse the evidence as no sufficient reasons have been pleaded to take the evidence on record as it was a delayed one and also that the evidence was filed much after the extended time.</p><p style="text-align: justify;"> 18. The appellants contention that evidence was filed even before the order was passed cannot be accepted. On this argument he relied on the observations of this Board made in OA/12/2005/TM/AMD Sanya Electric Co. Ltd Vs. Sanyo Ceratiles Pvt. Ltd. âThe Assistant Registrar had in fact granted time to the appellant to file their evidence and had communicated to the appellant after the due date. On perusal of the records we find that the appellant had also filed their evidence in support of opposition which was received by the Trade Marks Registry, the second respondent herein, but not considered by the Assistant Registrar on the date of passing of the order.â</p><p style="text-align: justify;"> 19. We are of the view that the above observation if considered in its proper content will not in any way help appellants. In fact in that case the evidence was filed before the extended time, despite it the Assistant Registrar had passed an order treating the opposition as abandoned, whereas in this case, we find that the time was granted from 1.7.2002 to 3.12.2003 on several applications on Form TM-56. The evidence in support of opposition was filed on 25.3.2004 even after three months of the extended date i.e. after 3.12.2003.</p><p style="text-align: justify;"> 20. The society at large has a vital interest in maintaining the purity of the Register. As held by the Delhi High Court in 2000 PTC 24 (Delhi) as also by this Board in other matters, we are also of the view that the Assistant Registrar has powers to grant extension of time for filing evidence in support of opposition. In fact this Board has held in various matters concerning this issue that the Registrar should have taken on record the evidence for arriving at a correct decision placing reliance on the documents.</p><p style="text-align: justify;"> 21. On considering the facts of the instant case, we are of the view that there is no infirmity in the orders of the Assistant Registrar. The Assistant Registrar had granted nearly a year and half for the appellant (opponent) to file their evidence. The appellant had not filed the evidence within the time so extended, but had filed evidence after a period of three months from the date of extended time without even a request to further extend the time on any reasonable ground. Appellant has been granted sufficient indulgence by the Registrar. Every application for extension of time was duly considered and allowed. Despite being informed that âno extension of time will be grantedâ. Appellant did not bother to file the evidence within the extended time.</p><p style="text-align: justify;"> 22. In view of the above, we are of the opinion that the order of the Assistant Registrar suffers no infirmity and hence the appeal is dismissed with no costs. The opposition No.AMD 58501 is dismissed and the application No.641893 in class 29 is directed to proceed to registration.</p>', 'observations' => null, 'overruledby' => null, 'prhistory' => null, 'pubs' => null, 'ratiodecidendi' => null, 'respondent' => 'Assistant Registrar of Trade Marks, Trade Marks Registry, Ahmedabad and Another', 'sub' => null, 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '1118044' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: Section 130, Section 131 of the Act, Section 131 of the Act
PERSON: S.Usha, herein, Registrar, Shri Akshay Vakil, Shri Y.J.Jasani, Vinodbhai, Vinodhbai, Registrar, Registrar, Registrar, Navbharat, Champakbhai Parsottambhai Patel Vs, Nanhku, Registrar, Registrar, Registrar, Registrar, Registrar, Registrar, Registrar
CARDINAL: 8.6.2004, 58501, 29, 50(2, 2, 29, 1.12.2000, 5.12.2001, 5.2.2002, up to 5.8.2002, 5.2.2002, 5.8.2002, 5.12.2002, 3, 50(2, 4., 5., 6., 50(2, 23.2.2001, 15.1.2002, 9.7.2004, 9.7.2004, 8, 9, four, 10, 1, 30, 2, 32, 287, 1, 4, 4, 480, 11, 3.10l.1994, 23.10.2001, 12, 11, 6, 13, 25.9.2003, 3.12.2003, 1, 0, 2, 200, 3, 4, 4, 915, 15, 2, 1, 16, 1, 2, 17, 18, 19, 1.7.2002, 3.12.2003, 20, 21, half, 22, 29
ORG: AMD, the Trade Marks Act, the Trade Marks Rules, No.641893, the Trade marks Journal, Registrar, IPAB, Hindustan Lever Limited Vs, Sunrider Corporation 2006, IPAB, Sanya Electric Co. Ltd Vs, Sanyo Ceratiles Pvt. Ltd., Kailash Vs, Registrar, the Trade Mark Journal Advertisement, the Trade Marks Registry, the Trade Mark Registry, Videocon Narmada Electronics Ltd., Ors AIR, Kailash Vs, AIR 1975, SC, Ramachandra Vs, Registrar, Registrar, Board, Registrar, Registrar, Registrar, Registrar, Registrar, the Honble Gujarat High Court, Registrar, Board, TM, Sanya Electric Co. Ltd Vs, Sanyo Ceratiles Pvt, the Trade Marks Registry, Register, the Delhi High Court, Board, Board, Registrar, Registrar, Registrar
DATE: 1999, 2002, 1986, 3671, 19.10.2001, two months, 1.7.2002, six months, six months, 27.12.2002, 5.8.2003, 19.8.2003, 25.3.2004, 8.6.2004, 25.8.2004, 19.1.2002, 25.3.2004, 8.6.2004, 8.6.2004, 25.8.2004, 8.6.2004, 9.7.2004., 2005, 3) 2007, 1986, past many years, 1986, 14, 2005, 215835, 2001, 1999, 2007, 25.3.2004, three months, 2000, nearly a year and, three months
ORDINAL: second, second, first, first, first, first, first, first, second, second, second, second, second, second, first, second, second, second, second, second, second, second, second, second
PRODUCT: Form TM-56
NORP: Rules, Asian, Designs
GPE: Gujarat, Gujarat, Delhi
EVENT: Ors 2005
LOC: grantedâ. Appellant