Refusal of a trademark application without a proper hearing violates the principles of natural justice, requiring reforms in the current hearing procedures.

JUDGMENT

Prathiba M. Singh, J.(Oral)--This hearing has been done through hybrid mode.

2. In the present writ petition, the grievance of the Petitioner is that the trademark application of the Petitioner bearing no. 3981639 dated 24th October, 2018 in Class-17 for the registration of the mark `SWISS' has been refused without even affording a hearing to the Petitioner. The case of the Petitioner is that two notices for hearing were given to him. Even though the agent for the Petitioner logged in for the hearing, the official concerned did not log in, on both the occasions. Emails were sent by the ld. counsel for the Petitioner in respect of the same but no response was received. Finally, without the hearing being held, the refusal order was issued on 25th January, 2022.

3. The matter was taken up for hearing yesterday, i.e., 22nd March, 2022, and the concerned Senior Examiner of Trademarks was directed to join the Court proceedings in order to clarify as to whether any hearing was in fact given to the Petitioner, and if it was not given, the reason for the same.

4. Ms. Shikha Dewan, Senior Examiner of Trademarks has appeared today in compliance of directions contained in order dated 22nd March, 2022. Submissions made by ld. counsels for the parties and Ms. Shikha Dewan show that:

I. The cause list for hearing of the Trade Mark Registry is published on a monthly basis.

II. The platform over which hearings are conducted by the Registry, permits only three persons at a time to be present in the hearing and all the remaining participants/attendees are kept in the waiting room.

III. The order which is passed by the Trade Mark Examiner has two parts, the templated portion and the non-templated portion where the Trade Mark Examiner types out the order. The templated portion is not editable and shows that the matter was set down for hearing and eventually hearing took place on a particular date. The templated portion in the impugned order in the present case reads as under:

"Above application has been filed for registration of the trademark SWISS on 24/10/2018 which was examined on 27/11/2018 and examination report was communicated to the applicant at his address for service. A reply to the office objection(s) had been filed on behalf of the applicant but the same was not found satisfactory and "the application was set down for hearing and eventually hearing took place before me on 30/11/2021".

I have gone through the records"

IV. Ms. Dewan admits that the Ld. counsel for the Applicant/Petitioner (hereinafter "Applicant") in the present case was not heard and the templated portion of the impugned order is contrary to the actual fact. Perusal of the screenshot placed on record also shows that the ld. counsel for the Applicant was in the meeting room during the show cause hearing on 30th November, 2021. However, without giving any hearing to the ld. counsel, it has been recorded in the impugned order that hearing was held, submissions were heard, and the application for registration of the mark was refused.

5. Heard. Orders which are passed by the Registrar of Trademarks deal with precious rights relating to the trademarks of individuals and businesses. The refusal of a trade mark without even affording a hearing would be contrary to the fundamental tenets of natural justice. The illegality is further compounded when the order captures that hearing took place, whereas in fact the counsel was kept waiting in the WAITING ROOM but was not admitted. Thus, submissions were not heard but the order records that submissions were heard.

6. The Trade Mark Registry deals with lakhs of applications every year and therefore, the util