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High Court Of Delhi
RATAN AND COMPANY - Appellant
Versus
P.NARAYANAN - Respondent
First Appeal Order 28 of 1968
Decided On : 04/22/1975
TRADEMARK - EXTENSION OF TIME FOR FILING NOTICE OF OPPOSITION - REVIEW OF ORDER - APPEALABILITY - SECTION 21, 97(C), 101, 109(2) OF THE TRADE AND MERCHANDISE MARKS ACT, 1958 - SECTION 101(2) OF THE ACT EXCLUDES THE APPLICABILITY OF SECTION 101(1) IN CASES WHERE TIME IS EXPRESSLY PROVIDED FOR IN THE ACT - NO APPEAL LIES AGAINST AN ORDER GRANTING EXTENSION OF TIME UNDER SECTION 21(1) OF THE ACT - REVIEW OF SUCH AN ORDER IS ALSO NOT PERMISSIBLE UNDER SECTION 97(C) OF THE ACT.
Fact of the Case:
The appellants filed an application to register the trademark 'JAINSON' for padlocks. The opponents filed an application for extension of time to file a notice of opposition, which was not accompanied by a power of attorney. The opponents' advocate later withdrew the application for extension of time, but the opponents claimed that they had not authorized the withdrawal. The Assistant Registrar granted the opponents' request for extension of time and accepted the notice of opposition. The appellants filed a review petition against the order granting extension of time, which was dismissed by the Assistant Registrar.
Finding of the Court:
The court held that the order granting extension of time was not appealable under Section 109(2) of the Act because it was a procedural order that did not affect the rights and liabilities of the parties. The court also held that the review petition was incompetent because the order granting extension of time was not a 'decision' within the meaning of Section 97(c) of the Act.
Issues: 1. Whether an appeal lies against an order granting extension of time under Section 21(1) of the Trade and Merchandise Marks Act, 1958? 2. Whether a review petition lies against such an order under Section 97(c) of the Act?
Ratio Decidendi: 1. Section 109(2) of the Act provides for an appeal from any order or decision of the Registrar under the Act. However, the court held that this provision does not include interlocutory orders, which are merely procedural or processual and do not affect the rights and liabilities of the parties. 2. Section 97(c) of the Act allows the Registrar to review his own decision. However, the court held that the order granting extension of time was not a 'decision' within the meaning of this provision because it did not affect the rights and liabilities of the parties.
Final Decision: The court dismissed both appeals with costs.
( 1 ) THESE are two appeals against the orders of the Assistant Registrar.
( 2 ) THE undisputed facts are these. On 5th October, 1966 the appellants Messrs. Rattan and Co. filed an application bearing No. 238044-B to register the trade mark JAINSON in class 6 in respect of padlocks. The application was advertised in the Trade Marks Journal on 1st September, 1967.
( 3 ) ON 30th November, 1967 the opponents Messrs. R. P. Locks Co. of Delhi filed an application in Form TM-44 praying for extension of time for one month for giving notice of opposition to the registration of the trade mark. This request was signed by their advocate engaged by them.
( 4 ) SINCE the request was not accompanied by a power of attorney of the said advocate no action was taken in the Registry on this request contained in TM-44.
( 5 ) ON 2nd December, 1967 a letter was addressed by the opponents advocate requesting the registry to treat TM-44 as withdrawn.
( 6 ) ON llth December, 1967 a notice of opposition signed by the said advocate along with a power of attorney was received in the Registry. The Registry by letter dated 18th December, 1967 informed the advocate that the notice of opposition would not be taken on record as the same was barred by time. Obviously this notice of opposition was filed beyond the period of three months as prescribed in Section 21 of the Trade and Merchandise Marks Act 1958 (the Act ).
( 7 ) ON 23rd December, 1967 the opponents themselves moved a petition supported by an affidavit saying that their application for extension of time may be granted. They further said that the notice of opposition already filed by them may be taken on record and be proceeded with. The opponents informed the Registry that the power of attorney of the advocate engaged by them had been cancelled and that he no longer represents them. The opponents also said that they never authorised their counsel to withdraw TM-44 and, therefore, the request for withdrawal was illegal. The application for withdrawal made by their advocate, it was further alleged, was made without their instructions.
( 8 ) ON the basis of the petition made by the opponents the Assistant Registrar granted extension of time by one month. By letter dated 8th January, 1968 he informed them that their request in TM-44 for extension of time has been allowed. The notice of opposition having been filed within the extended time was taken on record.
( 9 ) ON 5th February, 1968 the appellants filed a review petition in Form TM-57 against the order granting extension of time for filing the notice of opposition. They sought review under. Section 97 (c) of the Act.
( 10 ) THE Assistant Registrar by order dated llth April, 1968 dismissed the application for review on two grounds. Firstly, he held that no review of his order extending the time lay. Secondly, he held that there was no sufficient ground for review of his order.
( 11 ) THE appellants have filed two appeals in this court. One is directed against the order dated 8th January, 1968 by which the Assistant Registrar acceded to the request for extension of time. Under Sec. 21 of the Act he had allowed the opponents one month s time by way of extension. This order is challenged in appeal No. 28 of 1968.
( 12 ) THE other appeal (FAO 86 of 1968) is directed against the order dismissing the application for review. By this order I propose to decide both the appeals. This order will govern them both.
( 13 ) UNDER Section 21 of the Adt any person may file an opposition within a period of three months from the date of the advertisement If he seeks further time he may apply to the Registrar. The Registrar has the power to extend the time for a period, "not exceeding one month in the aggregate. " The application for extension of time has to be made in the form prescribed in TM-44. This is exactly what happened in this case. A request in TM-44 was made for extension of time. The Assistant Registrar has allowed it. I find nothing wro
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