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2013 Supreme(Del) 1598
High Court of Delhi
V.K. JAIN, J.
Paras Natural Spring Water Pvt. Ltd. & Another
Versus
Registrar of Trade Marks Delhi & Others
WP(C) No. 7084 of 2010, 7085 of 2010 & 7087 of 2010
Decided On : 28-11-2013
Advocate Appeared:
For the Petitioners:S.K. Bansal, Advocate.
For the Respondent:M. Dutta, Advocate.
Procedural fairness and adherence to statutory provisions in the treatment of trademark registration applications.
Headnote:
Trade Marks - Registration - Sections 18, 21, 23 of the Trade & Merchandise Marks Act, 1958; Rule 39 (2) of the Trade and Merchandise Marks Rules, 1959
Fact of the Case:
The petitioners sought correction in the record of the Trade Marks Registry by regularizing and restoring their applications for trademark registration, as they were shown as 'abandoned' instead of 'pending registration'.
Finding of the Court:
The court quashed the orders treating the applications as 'abandoned' and directed the Registrar to give notice/hearing to the concerned applicants before deeming the applications as 'abandoned' in case of failure to respond to objections/proposals. The court also directed the Registrar to give notice to the applicant requiring evidence production and to decide the application on its merits if evidence is produced.
Issues: Treatment of applications as 'abandoned' by the Trade Marks Registry, correction of application status, and procedural fairness in responding to objections/proposals.
Ratio Decidendi: The Act does not provide for treating the application as 'abandoned' due to failure to respond to objections/proposals, and the Rules can be used to supplement the Act. The Registrar must give notice/hearing to the applicant before deeming the application as 'abandoned' and decide the application on its merits if evidence is produced.
Final Decision: The impugned orders treating the applications as 'abandoned' were quashed, and the Registrar was directed to follow the prescribed procedures and provide procedural fairness to the applicants.
V.K. Jain, J.
1. In WP (C) No.7084/2010, Shri Gajender Kumar and Chaudhary Ved Ram trading as M/s. Vedram & Sons (as applicant), applied to the Registrar of Trade Marks for registration of the mark PARAS PREMIUM, on 23.12.1996. The petitioner claims to have acquired rights over the said trademark PARAS PREMIUM. It appears that some objections to the proposed mark were raised by the Trade Marks Registry. Vide letter dated 8.6.2001, the report of the Trade Marks Registry was sent to the applicant stating therein that if no reply was received within three (3) months from the date of the letter, the application for registration of the trademark would be treated as abandoned in terms of Rule 39 (2) of the Trade & Merchandise Marks Rules, 1959. The case of the petitioner is that on receipt of the said letter dated 8.6.2001 it had agreed to association with application No.745528, besides agreeing to disclaim the word ‘PREMIUM’.
2. Vide notice dated 4.3.2005, the Registrar of Trade Marks informed the applicant that since it had failed to comply with the office requirements called for, the application for registration was ordered as abandoned, on account of its default in prosecuting the said application. It was further stated in the said notice dated 4.3.2005 that if the applicant had already complied with the office requirements it should furnish copies of the supporting documents within 21 days from the date of the receipt of the said notice for re-consideration of its case. The applicant claims to have responded to the said notice on 9.5.2005 stating therein that the application had been wrongly abandoned since they had already complied with all the requirements of the Trade Marks Registry vide their letter dated 7.7.2003. A copy of the letter dated 7.7.2003 was annexed to the aforesaid letter.
3. The case of the petitioner is that on coming to know on 23.8.2008 that their application was shown as ‘abandoned’ instead of ‘pending registration’, they sent a letter dated 25.8.2008 to the Deputy Registrar of Trade Marks raising objection to the Trade Marks Registry treating their application as ‘abandoned’. Since the application of the petitioner continues to be shown as ‘abandoned’in the record of the Trade Marks Registry, the petitioner is before this Court, seeking correction in the record of the Trade Marks Registry by regularizing and restoring its application followed by adjudication of the said application in accordance with law. The petitioner is also seeking a direction for correcting the status of the application as ‘pending’instead of ‘abandoned’.
4. In WP (C) No.7085/2010, Shri Gajender Kumar, Shri Ved Ram and Mrs. Neelam trading as M/s. Vedram & Sons (as applicant), applied to the Registrar of Trade Marks for registration of the mark PARAS LABEL (in English) on 10.12.1993. The examination report raising certain objections to the aforesaid mark was sent to the applicant on 23.3.1999. The applicant responded to the said communication on 18.1.2000 agreeing to be associated with application Nos.490104 and 613697. The applicant also agreed to disclaim the device of Cow’s Head. The hearing in the matter was fixed for 31.12.2001 and a notice was sent to the applicant. Since no one appeared for the applicant on 31.12.2001, the application was treated as ‘abandoned’. Vide application dated 7.4.2007, the applicant sought to know the status of their application. According to them no response to the said letter was received by them. This is also the case of the petitioner that on 23.8.2008 they came to know, the status of their application is being shown as ‘abandoned’instead of being shown as ‘pending’ and,therefore, vide letter dated 25.8.2008 sent to the Deputy Registrar of Trade Marks they protested to the status of their application being shown as ‘abandoned’. However, since the status of the application continues to be shown as ‘abandoned’ in the record of the Trade Marks Registry the petitioner is before this Court
