JUDGMENT

Vipin Sanghi, J. (Oral)--This petition has been preferred by the petitioner under Article 226 of the Constitution of India to seek a writ of mandamus against the respondents thereby directing them to grant restoration and/or renewal of the petitioners trademark registration No.268211B dated 23.11.1970 in Class 16.

2. The case of the petitioner is that the petitioner obtained the registration of the stylized mark MBD under Registration No.268211B on 23.11.1970 vide certificate dated 20.12.1971 issued by the Registrar of Trademarks. This registration was lastly renewed on 01.07.1977, and expired on 23.11.1984.

3. The petitioner submits that the said registration was not renewed, and the petitioner came to know of the fact that the Registrar of Trademarks have removed the said marks from the register on 12.04.2010. On 07.10.2010, the petitioner made an application for restoration of the said trademark on the register and renewal thereof. According to the petitioner, the respondent has not entertained this application. Consequently, this petition has been preferred.

4. The submission of learned counsel for the petitioner is that the respondent did not follow the prescribed procedure before removing the said trademark from the register of trademarks. Reference is made to section 25 of the Trade and Merchandise Marks Act, 1958, (The Act) which was applicable at the relevant time. Section 25 of this Act reads as follows:

"25. Duration, renewal and restoration of registration (1) The registration of a trade mark shall be for a period of seven years, but may be, renewed from time to time in accordance with the provisions of this section.

(2) The Registrar shall, on application made by the registered proprietor of a trade mark in the prescribed manner and within the prescribed period and subject to payment of the prescribed fee, renew the registration of the trade mark for a period of seven years from the date of expiration of the original registration or of the last renewal of registration, as the case may be (which date is in this section referred to as the expiration of the last registration).

(3) At the prescribed time before the expiration of the last registration of a trade mark the Registrar shall send notice in the prescribed manner to the registered proprietor of the date of expiration and the conditions as to payment of fees and otherwise upon which a renewal of registration may be obtained, and, if at the expiration of the time prescribed in that behalf those conditions have not been duly complied with, the Registrar may remove the trade mark from the register.

(4) Where a trade mark has been removed from the register for non-payment of the prescribed fee, the Registrar may, within one year from the expiration of the last registration of trade mark, on receipt of an application in the prescribed form, if satisfied that it is just so to do, restore the trade mark to the register and renew the registration of the trade mark either generally or subject to such conditions or limitations as he thinks fit to impose, for a period of seven years from the expiration of the last registration".

(Emphasis supplied).

5. Reference is also made to Rules 66 to 69 of the Trade & Merchandise Marks Rules, 1959 which were applicable at the relevant time. The said Rules read as follows:

"66. Renewal of Registration.

An application for the renewal of the registration of a trade mark shall be made on form TM-12 and may be made at any time not more than six months before the expiration of the last registration of the trade mark.

67. Notice before removal of trade mark from register.

At a date not less than one month and not more than two months before the expiration of the last registration of a trade mark, if no application on form TM-12 for renewal of the registration together with the prescribed fee has been received, the Registrar shall notify the registered proprietor or in the case of a jointly registered trade mark each of th