The Registrar of Trade Marks has the power to reconsider and withdraw the acceptance of a trademark application before actual registration, after hearing the applicant.

( 1 ) IN this petition the petitioner seeks to challenge the issuance of the letter dated 21st October,1997 whereby show cause notice has been given under Sections 18 (4) and 19 of the Trade and Merchandise Marks Act, 1958 (hereinafter called the Act for short ).

( 2 ) BRIEFLY stated, the claim of the petitioner is that in the year 1977, son of petitioner No. 1 introduced small pouches and given them the name of gutka . The said pouches were being sold under the mark prince which were registered under No. 414884b in Class 31. The said trade mark prince as well as the trade mark gutka were assigned in favour of the petitioner No. 2. The assignments have been accepted. The Pan Masala under the trade mark prince/princegutka had achieved a unique popularity. On 5th May, 1984 under Application No. 421497 in Class 34, application for registration of the trade mark gutka was filed. On 10th December, 1987 the trade mark was published and objections were invited but no objection was filed in time. However, after the Deputy Registrar passed an order on 26th April. 1993 on judicial side at the behest of some person, the impugned notice under Sec. 18 (4)and Sec. 19 of the Act. This notice has been challenged on various grounds.

( 3 ) I have heard the learned Counsel for the petitioner and gone through the record. It cannot be accepted that Registrar has no power to reconsider after virtual acceptance of an application for registration before actual registration. Subsection (4) of Section 18 of the Act provides asunder:

(4) "subject to the provisions of this Act, the Registrar may refuse the application or may accept it absolutely or subject to such amendments, modifications, conditions or limitations, if any, as he may think fit. "

( 4 ) BESIDES, Section 19 of the Act also provides as under:

19. Withdrawal of acceptance.-Where, after the acceptance of an application for registration of a trademark but before its registration, the Registrar is satisfied: (a) that the application has been accepted in error; or (b) that in the circumstances of the case the trade mark should not be registered or should be registered subject toconditions or limitations or to conditions additional to or different from the conditions or limitations subject to which the application has been accepted; the Registrar may, after hearing the applicant if he so desires, withdraw the acceptance and proceed as if the application had not been accepted. "

( 5 ) AS such, it is very much evident that the Registrar may, after hearing the applicant, if the applicant so desires, withdraw the acceptance of the trade mark and proceed as if the application had not been accepted.

( 6 ) THERE is yet another aspect. No final order has yet been passed. The present appeal purports to have been filed under Sub-section (2) of Section 109 of the Act. Sub-section (2) of Section 109 reads as under :

(2) "save as otherwise expressly provided in Sub-section (1) or in any other provision of this Act, an appeal shall lie to the High Court within the prescribed period from any order or decision of the Registrar under this Act or the rules made thereunder,"

( 7 ) A question arises whether the impugned letter is just a proposal or an order or "any order or decision" of the Registrar within the meaning of Subsection (2) of Section 109 of the Act. It is apparently not a final order irrespective of whetherit is justan interim order to postpone the registration. This Court should be very slow in interfering in this kind of order for the petitioner is being afforded an opportunity to put his point of view irrespective of the fact whether this order is covered by the phrase "any order or decision" or not.

( 8 ) THE question is: "whether the learned Registrar is acting within the parameters of law or beyond it?" It is apparent that the petitioner is claiming that his son was using the trade mark prince as well as gutka lt is also admitted that the gutka had not yet been registered