Amendment of an application under Section 22 of the Act cannot permit the change of class of an application.

( 1 ) THIS is an appeal filed under Section 109 (5) of the Trade and Merchandise Marks Act, 1958 (hereinafter called the said Act ). Wherein the appellant has challenged the correctness of the Order of a Single Judge of this Court dated November 4, 1991 who in turn has upheld the decision of the Deputy Registrar of the Trade Marks withdrawing the acceptance of the Application which has been filed by the appellant.

( 2 ) BRIEFLY stated the facts are that on April 19, 1982 the appellant filed before the Registrar of Trade Marks an application for registration of his mark. The application was in respect of electric switchgears and other electrical goods. The application was filed for registration under Class 11 of the 4th Schedule to the Trade and Merchandise Marks Rules, 1959 (hereinafter called as the Rules ). In the application the user was claimed of the mark max STANDARD w. e. f. January 1, 1982.

( 3 ) IT appears that after the scrutiny has been conducted in accordance with provisions of Rule 38 of the said Rules the said application was accepted. Thereafter on January 24, 1986 the appellant has filed an application seeking amendment of the earlier application dated 19th April, 1982. The said amendment which was sought was that the description of goods for which the registration was sought was confined to Electrical Switchgears. In addition thereto the amendment application sought to change the Class 11 to 9. The date of user was also proposed to be changed from January 1, 1982 to January 1, 1979. The next relevant circumstance is that the amended application for registration filed by the appellant was advertised in the Trade Marks Journal on November, 1, 1988 and to that application opposition was filed by the Respondent herein. On August 23, 1989 the appellant herein filed a reply to the Opposition. It is alleged by the appellant that by ignoring this reply an Order was passed on October 16, 1989 by Trade Mark authority to the effect that the application for registration had been abandoned by the appellant herein. Soon thereafter on October, 23, 1989 an application in TM-57 for the review of the Order dated 16th October, 1989 was filed by the appellant.

( 4 ) PENDING hearing of the review application the Respondent herein filed an application from which the present proceedings arise in which it was inter alia contended that the appellant herein had not come before the Trade Mark Authority with clean hands. It was alleged that the appellant herein knew that the respondent was owner of registered trade mark mex in Class 9 and thereafter the appellant deliberately filed an application for registration under Class 11 and thereby got an order of the acceptance of the application for advertisement. The prayer made in the Interlocutory application filed by the respondent was that the application No. 388954 which has originally been filed by the appellant on April 19, 1982 and which was later on amended should be dismissed. Reply was filed to the said application and on March 13, 1991 the Deputy Registrar of Trade Marks allowed the said Interlocutory application of the appellant and further ordered that the opposition which had been filed by the respondent shall be treated as closed. The review petition was also rejected. In coming to this conclusion the Deputy Registrar observed that by the said amendment the appellant has sought to substantially alter the earlier application and the game was not permissible under law.

( 5 ) THIS decision was challenged by filing an appeal in this Court Mahinder Narain. J. vide his Order dt. November 4. 1991 observed that in view of Rule 38 of the Rules there should have been a fresh search in connection with the application for amendment which ought to have been treated as an amended-application but then directed that in view of the peculiar circumstances of the case the appellant herein should file a fresh application for registration of trade mark.

( 6 ) THE contention of t