Aman Engineering Works vs. Registrar Trademark, New Delhi & Anr.
Introduction
This case came up before the Hon’ble High Court of Delhi challenging the Order dated 07.01.2020 of the Registrar of Trademarks which allowed the review applications for the marks that were abandoned almost 16-17 years ago.
Facts
The facts of the case are that the Petitioner is a Partnership Firm since 01.07.1980 and filed a Trademark Application for the mark “KRANTI” in 17.09.1990. The Respondent No. 2 is B.M. Meters Pvt. Ltd. Who filed an application for the Trademark “RITE KRANTI” on 16.06.1994 but when sent a notice for hearing, failed to attend the same. The Respondent No. 2 filed another application for the mark “B&M KRANTI” but again failed to attend the Show Cause Hearing. Both of the marks were declared abandoned after some time. Almost 25 years after the filing of Application, the Respondent No. 2 filed an Application for the Review of Registrar’s Decision which when heard was allowed by the Registrar. The Petitioneris aggrieved with this order thus moving with this present petition.
Question before the Court
- Whether the registrar has the power to condone delay or take into consideration such delayed application for review?
Stance of Petitioner
The Petitioner stated that the Respondent No. 2 first contended that its Attorney did respond to the Examination Report but they did not receive any notice of hearing or the notice of adverse order but the impugned order by the Registrar of Trademarks stated that the Respondent No. 2 also did not receive the Examination report and therefore there was contradiction between the statements.
It was further contended that even if there was no such error in the impugned order, the review application under Rule 119 of the Trademark Rules, 2017 can only be filed within 1 month from the date of the order aggrieved from. Therefore such an application was barred by limitation and no condonation of delay could be granted.
The Petitioner relied on New India Assurance Company Limited. v. Hilli Multipurpose Cold Storage Private Limited, (2020) 5 SCC 757 which stated that a quasi-judicial/ tribunal cannot exceed the outer limit set by law for condonation of delay.
The Petitioner in its rejoinder contended that the Affidavit of the Respondent No. 2 could not be taken into consideration and also that the period prescribed in the Rules for filing of an application seeking for review or for seeking condonation of the delay is to be treated as being prescribed by the Act only.
Stance of Respondent
The Respondent No. 1 stated that since there was non-compliance of the service of Examination Report; they had allowed the Review Application.
Respondent No. 2 on the other side stated that though they had mentioned in their review application that the Examination Report was sent and replied to by the Respondent No. 2 and its Attorney but in the Affidavit submitted it was stated that the Examination Report was also not received by them and relying on the same, the Registrar of Trademarks passed the impugned order. The Respondent relied on cases which held that service of the notice of hearing as well as the order is mandatory. It was further contended that the general power of condonation of delay given to the Registrar under Section 131 of the Act, cannot be curtailed by Rule 119. It was also contended that since Section 127(c) does not prescribe any limitation the Registrar was well within the rights for condonation of delay. The respondent also questioned the Locus Standi of the Petitioner and that the Petitioner should wait till the time their Applications are advertised to move forward with objection/oppositions.
Observation
- The court found the Respondent No. 2’s stance that the Petitioner should wait till the advertisement of the marks as ill-founded as the revival of the mark will cause prejudice to the Petitioners.
- The Court stated that the Section 127 which gives powers to the Registrar, mainly Section 127(c) which gave power to the Registrar to review his own decision has to be read in consonance with Rule 119 which states that “An application to the Registrar for the review of his decision under sub-section (c) of section 127 shall be made in Form TM-M within one month from the date of such decision or within such further period not exceeding one month thereafter as the Registrar may on request allow”.
- The section 131 gives power for extension of time is to be read with Section 157 of the Act which gives power to the Central Government to make rules. It was stated that section 131 though gives power for extension of time for any activity but such power cannot override the provisions for deadlines and limits when specifically mentioned.Therefore, the Registrar was not in the power to condone the delay.
- Since the Application for review was itself infectious as it was filed way beyond the time period allowed, the order relating to the same will not hold any value.
- The Respondent No. 2 stance of the affidavit could not accepted as the contradiction to the same could be seen from the fact, that the reply to the Examination Report was filed by the Respondent No. 2 and therefore the burden of proof of non-service of the Examination Report could not be shifted on the Registrar after such a long time.
Conclusion
The Petition filed by Aman Engineering Works was allowed and the impugned order was set aside.
Apoorva Sharma is a 2022 Law Graduate from GGSIPU. With interest in Intellectual Property and related rights, Apoorva has gained work experience in IP Prosecution by mainly focusing on Trademark Applications and Opposition proceedings.