(Circuit Bench Sitting at Delhi)

ORDER (No.113/2010)

S. Usha, Vice- Chairman:

1. Appeal arising out of the order allowing the opposition No.172194 and refusing registration of the trade mark ‘RIGHT CHOICE’ in class 30 in respect of rice of all kinds under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act).

2. The appellant herein filed a miscellaneous petition No.41/08 under section 95 of the Act to stay the operation of the order dated 27.12.2007 pending disposal of the appeal. The miscellaneous petition has been filed on the ground that the impugned order is contrary to the facts on record and the provisions of law. The balance of convenience is in favour of the appellant. The appellant would be put to irreparable loss if the order is not recalled and remanded back to the Registrar for fresh hearing. In view of the above, the impugned order be stayed.

3. The notice sent to the first respondent was served for the hearing on 21.05.10 but none appeared for the first respondent. We therefore set the respondent exparte and heard the petitioner.

4. The learned counsel for the petitioner contended that the impugned order was contrary to law and was erroneously passed. The other contention was that there was another opposition against the same application and hence the impugned order ought to be stayed. The counsel relied on two judgements 2004 (29) PTC 614 (IPAB) Sona Tea House Vs. Sona Spices Private Limited and Another and 2002 (25) PTC 198 (Delhi) (DB) -Osram Gesells chaft Mit bescharankter Haftung Vs. Shyam Sunder & Ors. The first judgement was filed in support of his contention that when two oppositions were filed against one application, they are to be heard together. The second judgement was relied on to decide the matter on merits of the main appeal.

5. We have heard the counsel and have gone through the pleadings. The issue that is to be decided is to stay the operation of the impugned order pending disposal of the appeal. We do not find any plea as to one another opposition was pending against the same application in the miscellaneous petition or any mention of the same in the impugned order. In such case, the judgement of this Board relied on by the petitioner has no relevance at this stage. In the opposition proceedings, the application for registration has been refused and the opposition is allowed and

so we do not find it necessary to stay the operation of the impugned order. The petitioners are not at a loss as the common law right is always available to them. 6. We do not find any merit in the miscellaneous petition and is therefore dismissed without costs.