The main legal point established is the peremptory nature of Rule 50(1) of the Trade Marks Rules 2002 and the statutory sequitur of deemed abandonment under Rule 50(2).

JUDGMENT (Oral)

1. On 28th April 1998, Respondent 2 filed Application No. 800324 for registration of the device mark [IMG] under class 32 in respect of "non-alcoholic drinks and beverages aerated water, beer and porter, syrups for making beverages essences".

2. On 15th September 2006, the appellant filed an opposition under Section 21 of the Trade Marks Act 1999, opposing the request of Respondent 2 for registration of the aforesaid device mark. Notice on the opposition was served on the Respondent 2, who filed a counter statement by way of response to the opposition on 15th April 2008. The date on which the counter statement was served on the appellant is not immediately forthcoming. However, it is not in dispute that the appellant filed its evidence in support of the opposition under Rule 50(1)¹[50. Evidence in support of opposition.-(1) Within two months from services on him of a copy of the counter-statement or within such further period not exceeding one month in the aggregate thereafter as the Registrar may on request allow, the opponent shall either leave with the Registrar, such evidence by way of affidavit as he may desire to adduce in support of his opposition or shall intimate to the Registrar and to the applicant in writing that he does not desire to adduce evidence in support of his opposition but intends to rely on the facts stated in the notice of opposition. He shall deliver to the applicant copies of any evidence that he leaves with the Registrar under this sub-rule and intimate the Registrar in writing of such delivery.] of the Trade Marks Rules 2002 (hereinafter referred to as "the 2002 Rules"), on 10th June 2010. On 11th June 2010, the appellant filed an application for extension of time in filing the evidence in support of the opposition. In the application, it was acknowledged that the evidence was filed after a delay of four months, for which extension was sought in the application.

3. By the following order dated 7th August 2019, the Deputy Registrar of Trade Marks held the opposition filed by the appellant to be deemed to have been abandoned under Rule 45(2)²[45. Evidence in support of opposition.-(2) If an opponent takes no action under sub-rule (1) within the time mentioned therein, he shall be deemed to have abandoned his opposition.] of the Trade Marks Rule 2017 (hereinafter referred to as "the 2017 Rules") and directed that the application would proceed further as per rules.

4. Aggrieved thereby, the appellant has preferred the present appeal under Section 91 of the Trade Marks Act before the learned Intellectual Property Appellate Board ("the learned IPAB"). Consequent to abolition of the learned IPAB by The Tribunals Reforms Act 2021, the appeal stands transferred to this Court.

5. Pleadings in the appeal have been completed and I have heard Ms. Rajeshwari H., learned Counsel for the appellant and Ms. Swathi Sukumar, learned Counsel for the Respondent 2 at length on the appeal.

6. Though there are certain averments in the appeal regarding the merits of the respondent's application seeking registration of the [IMG] device mark and on the merits of the appellant's opposition to such registration, I do not deem it necessary to enter into the merits of the matter, as the appellant's objection was rejected by the learned Deputy Registrar as abandoned. All that this Court has to see, therefore, is whether the learned Deputy Registrar was correct in her decision to treat the appellant's opposition to the application of Respondent 2 as abandoned.

7. I may observe, at the very outset, that the learned Deputy Registrar has formally erred in law in passing the impugned order under the 2017 Rules. All proceedings before the learned Deputy Registrar, save and except for the passing of the impugned order, on 7th August 2019, took place when the 2002 Rules were in force. The application seeking registration, the opposition thereto, the counter statement filed by way of response to the opposition and t