The main legal point established in the judgment is that the Registrar does not have the power to extend the time for filing the evidence affidavit in support of an opposition beyond the maximum period prescribed under the Trade Marks Rules, 2002.

( 1 ) IN this petition, the following two questions arise for consideration:-

1) Whether the Registrar of Trade Marks has the power to extend the time for filing of the evidence affidavit in support of an opposition beyond the maximum period of three months prescribed under rule 50 (1) of the Trade Marks rules, 2002 "

2) Whether the non-filing of the evidence affidavit within the prescribed time, ipso facto, means that an opposition to a trade mark application would be deemed to have been abandoned in terms of the provisions of Rule 50 (2) of the trade Marks Rules, 2002 "

( 2 ) THESE questions arise in respect of an application for registration of the trade mark "sunergy" in Class-3 filed on behalf of the petitioner and the opposition to the same filed on behalf of the respondent No. 1. On 14. 06. 1995, the petitioner (Sunrider Corporation) filed an application for registration of its trade mark "sunergy" in Class-3. On 21. 02. 2001, the same was advertised in the Trade Marks Journal. The respondent No. 1 (Hindustan Lever Limited) filed an opposition to the same in Form TM-5 on 24. 05. 2001. The petitioner filed its counter-statement in Form TM-6 on 14. 10. 2002. It has been contended on behalf of the petitioner that under Rule 50 (1) of the Trade Marks Rules, 2002, evidence by way of affidavit in support of the respondent No. 1's opposition ought to have been filed within two months which was extendable in the aggregate by a further one month. Accordingly, it is the petitioner's contention that the evidence affidavit ought to have been filed latest by 13. 01. 2003,. e. , three months after 14. 10. 2002. However, the evidence affidavit was not filed by the respondent No. 1 by that date. In fact, it has not been filed at all. It was also contended on behalf of the petitioner that under the Trade and Merchandise marks Act, 1958 (hereinafter referred to as 'the 1958 Act') and the Trade and merchandise Marks Rules, 1959 (hereinafter referred to as 'the 1959 Rules'), no maximum time limit had been prescribed, whereas under the Trade Marks Act, 1999 (hereinafter referred to as 'the 1999 Act') and the Trade Marks Rules, 2002 (hereinafter referred to as 'the 2002 Rules'), there is a prescribed maximum time limit beyond which the Registrar cannot extend the time for filing of the evidence affidavit. It is an admitted position that by virtue of Section 159 of the 1999 Act, all the proceedings pending on the date on which the Act came into force,. e. , 15. 09. 2003, would be dealt with under the 1999 Act and not under the 1958 Act. It was submitted on behalf of the respondent No. 1 that the respondent No. 1 was filing applications in Form TM-56 for extension of time and the last of such applications was filed on 10. 02. 2004 However, it was submitted on behalf of the petitioner that they had no knowledge of these purported applications and, in any event, no orders had been passed on the purported TM-56 applications allegedly filed by the respondent No. 1.

( 3 ) ON 20. 02. 2004, the Assistant Registrar passed an order invoking the provisions of Rule 50 (2) and held that since the evidence affidavit was not filed by the respondent No. 1 within the prescribed time, the opposition was deemed to have been abandoned. Being aggrieved by this order, the respondent no. 1 filed an appeal before the Intellectual Property Appellate Board. The appeal filed by the respondent No. 1 was allowed by the Intellectual Property appellate Board by a judgment and / or order dated 11. 03. 2005 and the order dated 22. 03. 2004 passed by the Assistant Registrar was set aside and the matter was remanded to the Registrar for giving an opportunity of hearing to the respondent No. 1 as well as the petitioner and thereafter to pass the orders. The Intellectual Property Appellate Board passed the said order dated 11. 03. 2005 in view of its order passed in the case of Asian Paints Ltd v. Assistant registrar and Another in OA/108/2004 wherein th