(CIRCUIT SITTING AT AHMEDABAD)
Hon?ble Shri Justice S. Jagadeesan, Chairman :
The appeal is directed against the order of the Assistant Registrar of Trade Marks, Ahmedabad, dated 9.9.1993, dismissing the Review Petition filed by the appellant.
2. The appellant filed an application No.328079 in class 3 of fourth schedule of the Rules framed under the Trade & Merchandise Marks Act, 1958, on 20.8.1977 for registration of a numerical trade mark ?505? in respect of washing soaps in the State of Rajasthan. The first respondent filed the opposition stating that they are the registered proprietors of the numerical trade mark ?501? and as such, the registration of the appellant?s mark would cause confusion and deception. The Assistant Registrar of Trade Marks, considered the matter on merits and ultimately, by his order dated 9.11.1992, allowed the opposition No. AMD 430 (DEL 4367) of the first respondent and rejected the application of the appellant. Thereafter, the appellant filed a Review Petition in Form TM 27 on 7.12.1992, on the ground that the Assistant Registrar, while disposing the application for registration of the appellant did not consider the evidence adduced by the appellant in respect of their use at the pre advertisement stage. The said Review application was opposed by the first respondent and ultimately, under the impugned order dated 9.9.1993, the Assistant Registrar dismissed the Review application. Aggrieved by the same, the appellant filed the appeal on the file of the High Court of Gujarat at Ahmedabad under Article 226 of the Constitution of India which was numbered as Special Civil Application No.13399/1993. Later it was converted into an appeal, Appeal No.8/1994. After the Trade Marks Act, 1999, came into force in view of Section 100 of the said Act, the appeal stood transferred to this Board and numbered as TA/251/2004-TM (AMD).
3. We have heard the appeal during our circuit sitting at Ahmedabad on 20.12.2004. Shri R.R. Shah appeared on behalf of the appellant and none appeared for the first respondent.
4. The learned counsel for the appellant contended that along with the counter statement, the appellant filed the evidence relating to the pre advertisement stage. When the appeal was heard, at the time of hearing, the same was brought to the notice of the Assistant Registrar. Ultimately, it was found that the records were missing with the Registry and ultimately, the appellant was given time to produce the evidence relating to the pre advertisement stage. Unfortunately, the appellant could not comply with the same within the stipulated time and ultimately the Assistant Registrar disposed of the application for registration of the appellant on merits. This necessitated the appellant to file the present review application along with the evidence. When the appellant was bonafidely unable to comply with the direction of the second respondent herein, the review application filed along with the additional evidence ought to have been considered on merits by taking the evidence on record. On the other hand, the Assistant Registrar had disposed of the review application on technical ground that the appellant failed to utilize the opportunity given to them to produce the evidence relating to the pre advertisement stage immediately after the arguments were over and the Assistant Registrar totally failed to consider the explanation of the appellant for their inability to produce the evidence within the stipulated time after the arguments were over and as such, the order in the review application may be set aside with a direction to the Assistant Registrar to take the evidence on record and consider the review application on merits.
5. We have carefully considered the above contention of the learned counsel for the appellant.
6. The main contention of the learned counsel for the appellant is that the evidence relating to the pre advertisement stage produced by the appellant was not considered by the Assistant Registrar while disposing of the application for registration. A perusal of the records and also the observations made by the Assistant Registrar in the order makes it clear that such evidence of the appellant was not available on record. One factor which we are inclined to take note of is that originally the proceeding seems to have been initiated in the Registry at New Delhi. Subsequent to the formation of the Trade Marks Registry at Ahmedabad, the records seems to have been transferred to the Trade Marks Registry at Ahmedabad. We cannot rule out the possibility of the missing of the records. From the file, we find that the counsel for the first respondent seems to have addressed to the Registry of Trade Marks, New Delhi, for the copies of evidence produced by the appellant. If really, the copies were not available, the Registry ought to have sent a reply stating that the appellant has not produced any such evidence. The failure on the part of the Registry in sending any reply or forwarding copies of the evidence throws some doubt with regard to the availability of the evidence with the Registry.
7. Another pertinent factor is that when the first respondent has filed the opposition, in the statement of opposition at paragraphs 13 and 14, it is stated that they have produced some evidence as Annexure-?A? and ?B?. By letter dated 2.7.1982 under No.2549, the Trade Marks Registry, New Delhi, sent a communication to the first respondent?s attorneys stating that the exhibits as mentioned in their affidavit have not been received. Whereas, when the evidence in support of the application for registration was filed by the appellant, in paragraph 9, they have clearly stated that the bill books at pre advertisement stage were filed along with the statement. By letter dated 2.6.1984, the Trade Marks Registry, New Delhi, clearly acknowledged the receipt of the evidence. The Senior Examiner of Trade Marks has signed the said letter in the following terms : ?I am directed by the Deputy Registrar of Trade Marks to inform you that the evidence filed by you in support of application has been taken on record.? This is addressed to the attorney of the appellant and a copy has also been forwarded to the attorneys of the first respondent. From this, it is clear that the appellant seems to have filed the evidence of pre advertisement stage and the same had been misplaced either in transit or otherwise when the concerned file was transferred to the Registry of Trade Marks at Ahmedabad.
8. No doubt, the Assistant Registrar, after hearing the application for registration, gave an opportunity to the appellant to produce the documents, that is, evidence relating to the pre advertisement stage. The appellant could not comply with the same. There is no undue delay on the part of the appellant in seeking the review by giving out the reasons for non compliance of the direction of the Assistant Registrar. In such circumstance, we are of the view that there is some bonafide on the part of the appellant in not producing the evidence after the arguments were over and prior to the pronouncement of the final order. Moreover, when the mistake is by the Tribunal in
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misplacing the evidence, we also must be considerate to some extent to the appellant by providing them a chance. The right of the first respondent is also not affected because once the evidence is taken on file, naturally, the first respondent is entitled to have their opportunity to put forth their objection if any and the matter has to be decided on merits. Hence, we are unable to agree with the reason given by the Assistant Registrar for rejecting the review application. 9. Consequently, we allow the appeal and set aside the impugned order of the Assistant Registrar of Trade Marks and remit the review application back to the Assistant Registrar for fresh disposal. We direct the Assistant Registrar to take the evidence on record and dispose of the same on merits. No order as to costs.