The judgment emphasizes the importance of procedural conduct and upholds the interpretation and application of trademark provisions under the Trade Marks Act, 1999.

JUDGMENT :

1. Heard both the learned Counsel.

2. The Petitioner has adopted the trademark "DROT" which is a medicinal preparation and the Respondent No. 1 has adopted the trademark "DROTIN" which is equally a medicinal preparation. The Respondent No. 1 filed an application for, registration of his trademark in 1997 and the registration was granted in 2003. In the meanwhile, while the registration application of the Respondent No. 1 was pending, in the year 2002, the Petitioner filed an application for registration of his trademark "DROT" and that application was granted in 2004.

3. After the Petitioner's application for registration of the trademark was granted in 2004, on 7th November, 2005, the Respondent No. 1 filed a complaint and/or appeal for cancellation of the Petitioner's trademark. After service of the notice on the Petitioner, the Petitioner filed his reply on 6th March, 2006 within a period of 60 days, over which there is no dispute. Thereafter, on 17th September, 2007, the Respondent No. 1 filed a rejoinder and/or counter to the reply of the Petitioner alongwith evidence. Admittedly it was filed beyond the permissible statutory period of 60 days.

4. On 21st September, 2007, hearing took place at Bombay before the Appellate board and at that time, the matter was argued by the Respondent No. 1. Some arguments also seem to have been advanced on 21st September, 2007 in respect of the rejoinder filed by the Respondent No. 1. However, the minutes dated 21st September, 2007, show that the counsel for the Respondent therein (present Petitioner) consented for taking the Affidavit and the documents of evidence on record, subject to an application for condonation of delay being filed seeking condonation of delay that was caused in filing the Affidavit after following due process of law. It appears that on 27th September, 2007, the delay condonation application was filed and thereafter the matter was further heard on 12th October, 2007 at Chennai before the Appellate board. After having heard both the parties, the impugned order has been passed, allowing the appeal.

5. The learned Counsel for the Petitioner before us raised an objection to the effect that first the delay condonation application should have been decided and thereafter if delay is condoned, further opportunity should have been given to the Petitioner to adduce evidence in rebuttal. In his submission only thereafter the main petition and/or the appeal should have been heard and disposed of on merits by the Appellate Board.

6. We do not find any substance in this contention raised on behalf of the Petitioner in view of peculiar facts of this case. Para 5 of the impugned order passed by the Appellate Board, reads thus:

5. Learned Counsel for the applicant completed his argument but due to paucity of time the learned Counsel for the Respondent could not begin his argument and hence the part heard matter was, with the consent of both sides, decided to be listed for hearing at Chennai. Learned Counsel for the Respondent consented in principle if the reply to counter-statement; affidavit and documents is taken on record by the Appellate Board provided that the applicant files, after due process of law, petition seeking condonation of delay for late filing of reply, affidavit and documents. Accordingly, the applicant has filed a miscellaneous petition for condonation of delay. The miscellaneous petition and the part heard application came up for hearing on 12th October, 2007 when the learned Counsel for both sides appeared and argued the application and miscellaneous petition together. (emphasis supplied)

7. The last line of the said paragraph as reproduced above shows that even though the learned Counsel for the Petitioner was aware of the fact that after delay condonation application is allowed, it will be necessary for him to lead evidence in rebuttal, he proceeded to argue the main matter along with the application for delay condonation. Actually, that was the time when h