The Court emphasized the discretionary nature of its jurisdiction and the need for the Appellate Board to examine key factual elements before the Petitioner approaches the Court under Article 226.

JUDGMENT :

S. Ravindra Bhat, J.

The Petitioner is aggrieved by an order of the Assistant Registrar Trade Marks, New Delhi dated 3.8.2005 whereby the Trade Mark "ROCHAK" being No. 447376 B was directed to be removed from the Register of Trade Marks with immediate effect.

2. The brief facts of the case are that the mark "ROCHAK" (hereafter referred to as the "Trade Mark") was registered in Clause 30, i.e. the Bread, Biscuits, Cakes, Pastry and Confectionery in respect of goods. It was in favor of Sh. K.C. Bajaj, B.K. Bajaj and Y.K. Bajaj, trading as M/s Bajaj Food Products, Najafgarh Industrial Area, New Delhi. The Trade Mark was originally registered on 26.12.1985. It was apparently renewed and became due for renewal on 26.12.1996. No renewal fee was paid. The Petitioner claims to have acquired through assignment the said trade mark on 5.3.2004. It is alleged that the examiner of trade-marks informed the Petitioner on 17.3.2004 that registration of the trade mark had been renewed for the period 26.12.1999 to 26.12.2006. Subsequently Form TM-23 was lodged by the Petitioner with the Registrar of Trade Mark and necessary changes were made in the entries. The Petitioner was registered as a Proprietor of the Mark.

3. On 25.10.2004 the second Respondent objected to for renewal of the mark on the ground that no renewal fees for the period 26.12.1999 to 26.12.2006 had been paid. The first respondent i.e. the Assistant Registrar of Trade Marks issued a show cause notice u/s 57(4) was of the Trade Marks Act, 1999 asking the Petitioner to disclose why the entry with the Trade Mark should not be recalled/struck off of the Register. This notice was resisted and the first Respondent heard arguments on 15.7.2005. During the pendency of proceedings, on 16/18-7-2005, an application was made by the Petitioner requesting the first Respondent to verify whether notice Form O-3 was issued to the Registered Proprietor when the Trade Mark became due for renewal on 26.12.1999. By the impugned order the Assistant Registrar formed the opinion that since the Petitioner failed to produce the receipt for payment of renewal fee, (though it contended that no notice under Form O-3 had been received), nevertheless in the absence of the renewal fee there was no provision under the Trade Mark Act or Rules enabling the Proprietor of the Mark to get it renewed without payment of renewal fee.

4. Mr. S.K. Bansal, learned Counsel relied upon Section 25(3) of the Trade and Merchandise Act, 1958 (hereafter called the "Old Act") and submitted that the Registrar was under an obligation to issue and serve notice in the prescribed manner to the registered proprietor about the date of expiration. To enable renewal of registration of the trade mark without due compliance with such requirement, the use of power u/s 25(4) and submitted that even after removal the Registrar had the power to receive the application and if satisfy about the bonafides of the owner of trade mark, renew it in which event it would relate back to the point in time of its expiration. Counsel urged that the provisions of the new Trade Marks particularly Section 25 & 26 to say that the same intention has been manifested in the new Act.

5. Learned Counsel also relied upon the judgment of this Court Polson Ltd. v. Polson Dairy Ltd. 1996 (16) PTC 709. He contended that this Court had relied upon Section 25(4) of the old Act and Rule 69, to hold that the question whether a particular trade- mark had or had not been removed and whether it should be restored or removed would depend on the facts of each case, if the renewal is sought after expiry of the period. It was urged that the Court held that there is no restriction placed in the renewal of trade mark retrospectively and that the provisions of the Statute were not mandatory. Similarly, the judgment of Madras High Court reported as Abdul Karim Sahib & Sons. Etc., Tiruchirapalli v. Assistant Registrar of Trade Marks, Madras 1983 PTC 55 was relied upon to say that