The main legal point established in the judgment is that the application of Rule 50(2) of the Trade Marks Rules, 2002, is mandatory, and the Registrar does not have the authority to condone any delay in tendering evidence in support of opposition.

JUDGMENT

(Prayer: Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the 1st Respondent pertaining to the impugned order dated 13.10.2014 passed in Opposition No.776874 to Application No.1796011, Quash the same and consequently, direct the 1st Respondent to take on record, the Evidence in Support of Opposition filed by the Petitioner in Opposition No.776874 to Application No.1796011 in Class 29.

Writ Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, to call for the records of the 1st Respondent pertaining to the impugned order dated 23.10.2014 passed in Opposition No.MAS-748031 to Application No.1708645, Quash the same and consequently, direct the 1st Respondent to take on record, the Evidence in Support of Opposition filed by the Petitioner in Opposition No.MAS-748031 to Application No.1708645 in Class 9.)

Common Order

1. These two Writ Petitions raise a common question of law and involve similar factual matrices as well. Hence both are disposed by way of a single order.

2. In W.P.No.10332 of 2016, the petitioner, Victor Guedes Industria E Commercio S.A. (hereinafter referred to as ‘Victor’) is the proprietor of the trade mark ‘Gallo’ claimed to have been originally adopted in or around 1919 for edible oil. The second respondent Galla Foods Pvt. Ltd. made an application for the trade mark ‘Galla’ that came to be opposed by way of an opposition before the first respondent/The Deputy Registrar of Trade Marks (R1).

3. In W.P.No.10333 of 2016, the petitioner is Helmet Integrated Systems Ltd. (hereinafter referred to as ‘Helmet’), a company registered under the laws of the United Kingdom and proprietor of the trade mark ‘Alpha’. It claims to have adopted the mark in or around 1983 for protective equipment, such as helmets and jackets. The second respondent Mr.Naveen Das had made an application for the trade mark ‘Alphia’, for which the petitioner filed an opposition before R1.

4. Barring the aforesaid factual difference, the legal issue arising for determination is one and the same in both Writ Petitions. To the opposition filed by the petitioners, counter statements were filed by the second respondents and duly communicated to the authorised representatives of the petitioners.

5. Victor sought a month’s extension to file evidence in support of its opposition in TM56 dated 26.08.2011. Helmet, upon receipt of the counter also sought an extension along similar lines as Victor. Both petitioners, by way of abundant caution, also relied upon the evidences contained in the statements, averments and counters set out in the notice of opposition.

6. This procedure aligns with Rule 50 of the Trade Marks Rules, 2002 (in short ‘Rules’), which provides for the production of evidence in support of opposition, the timelines in this regard and the procedure to be followed.

7. In the case of Victor, since there was some delay in the receipt of evidence dispatched from Portugal, it had applied for further extension of time in TM56 after remitting the prescribed fee, on 28.09.2011. Due to the silence of R1, an Interlocutory Petition had been filed on 21.10.2011 seeking condonation of the delay in filing of evidence and requesting that the evidence filed be taken on record. Helmet, on its part, filed evidence in support of opposition on 12.01.2012. It also filed an Interlocutory Petition along similar lines as Victor.

8. Both petitioners have received orders dismissing the Interlocutory Petitions. The impugned orders are dated 13.10.2014 and 23.10.2014 and proceed on the basis that R1 did not have the requisite statutory authority to condone any delay in tendering of evidence.

9. It is the contention of the petitioners that R1 is vested with necessary statutory authority to condone such delay on a proper interpretation of Rule 50 of the Rules read with Section 131 of the Trade Marks Act, 1999 (in short ‘Ac