Sunbeam Food Products Company vs Assistant Registrar Of Trade ...
1999 Latest Caselaw 1242 Del

ORDER

Dr. M.K. Sharma, J.

1. This petition has been preferred by the petitioner under Section 109(2) of the Trade and Merchandise Marks Act as against the Order dated 27.7.1998 passed by the Assistant Registrar of Trade Marks allowing the review petition filed by respondent No.1 dated 13.7.1995 and recalling the order dated 29.6.1995.

2. On 31.5.1989 Shri Jagdish Pershad and Om Prakash Gupta trading in the name of M/s. Sunbeam Food Products Company, petitioner herein applied for registration of trade mark in the form of device of 'Lal QILA' with the words `LAL QILA BRAND' vide application No. 511110 in respect of Moong Dhova Dal (pulse) included in class 30. The aforesaid application was accepted for registration and was accordingly advertised in the Trade Marks Journal No. 1066 dated 1.11.1993.

3. The respondent No.1 opposed the registration of the trade mark advertised by filing their notice of opposition. On 1.11.1994 the petitioner contested the aforesaid notice of opposition by filing their counter statement in accordance with the provisions of Section 21 of the Trade and Merchandise Marks Act, 1988. The respondent No.1 thereafter sought for extension of time for filing their evidence and they were granted extension of time up to 23.5.1995. As no evidence of respondent No. 1 was brought on record of the proceedings it was held by the Deputy Registrar of Trade Marks that the opposition of respondent No.1. was deemed to have been abandoned and to that effect an order dated 29.6.1995 was passed. Being aggrieved by the said order dated 29.6.1995 the respondent No.1 filed a review petition on 13.7.1995 which petition was taken up for consideration and disposal and the said petition was allowed by the impugned order. Consequently, the order dated 29.6.1995 holding that the respondent No.1 was deemed to have abandoned the opposition was revoked and recalled.

4. Learned counsel appearing for the petitioner submitted that the afore-said order passed by the Assistant Registrar of Trade Marks reviewing the earlier order is bad. In law and contrary to the records of the case. Learned counsel appearing for respondent No.1 however, while refuting the submission of the counsel for the petitioner submitted that the aforesaid order was passed after considering the records of the case and on consideration of the statutory provisions laid down in that regard and therefore, there is no error in the order which would justify interference by this Court.

5. In the light of the aforesaid submissions I have considered the re-cords available before me. It transpires from the records that the time for filing the evidence in support of the opposition was extended at the re-quest of respondent No.1 up to 23.5.1995. It is the specific case of respondent No.1 that within the aforesaid extended period of time for filing their evidence respondent No.1 sent their evidence by way of an affidavit dated 31.3.1995 in the name of Shri Kartar Singh, partner of respondent No.1 exhibiting photographs of some supporting documents under their for-warding letter dated 15.9.1995. It is also stated that the aforesaid evidence along with the aforesaid forwarding letter dated 15.9.1995 was handed over in the office of the Trade Marks Registry, New Delhi and in token of receipt of aforesaid evidence along with letter dated 15.9.1995 initial of the staff member in the office of the Registry was also obtained and the rubber stamp of the Trade Marks Office was also affixed under the initial. It is also stated that the copy of the aforesaid affidavit and the exhibits thereto were also sent separately to the attorney, of the applicants, in accordance with the provisions of Rule 53(1) of the Rules, under the certificate of posting dated 16.5.1995. A photo copy of the aforesaid certificate of posting as also the originals thereof were placed on record. It is submitted by the counsel appearing for the respondent that in view of the aforesaid documentary evidence it is established that respondent No. 1 submitted its evidence within the extended period of time up to 23.5.1995 in terms of the provisions of Rule 53 (1) of the Rules framed under the Trade and Merchandise Marks Act. Counsel appearing for the respondent accordingly submitted that in the light of the aforesaid documentary evidence the Assistant Registrar was justified in recalling the earlier order dated 29.6.1995 holding that the opposition was deemed to have been abandoned by respondent No.1.

6. Counsel appearing for the petitioner however, submitted that a certificate of posting could be manufactured at any point of time and therefore, no reliance should have been placed on such document by the Trade Marks Registry as was done in the instant case. In support of the aforesaid contention learned counsel relied upon a decision of the Supreme Court in Mst. L.M.S. Ummu Saleema Vs. B.B. Gujral; . He also submitted that the signature/initial and date placed under the rubber stamp were illegible and were not the initial/signature of the staff member of the Trade Marks Registry and therefore, no reliance should have been placed by the Registry on such receipt indicating furnishing of the evidence in terms of Rule 53 of the Trade and Merchandise Marks Rules.

7. In this connection reference may be made to the provisions of Rule 53 laying down the procedure as to how the evidence in support of the opposition is to be received by the Registry. It provides that within two months from the service of a copy of the counter statement by the Registrar on the opponent, he 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 Registry or 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. It is also provided that the opponent has to deliver to the applicant copies of any evidence that he leaves with the Registrar under the aforesaid sub-rule . Sub-rule (2) of Rule 53 also provides that if an opponent takes no action under sub-rule (1) within the time prescribed, he shall, unless the Registrar otherwise directs, be deemed to have abandoned his opposition.

8. In terms of the provisions of the aforesaid rule, therefore, a person who is the opponent in a trade mark registration matter may file such evidence by way of affidavit as he may desire to adduce in support of his opposition leaving the same with the Registrar and copies thereof are to be furnished to the applicant. Even if the opponent fails to furnish such evidence the Registrar has to consider as to what would be the effect of the same and thereafter pass necessary orders in terms of Rule 53(2) hold-ing that the opposition is deemed to have been abandoned. In the present case as no evidence was available on record the Deputy Registrar of Trade Marks proceeded to hold that the opponent would be deemed to have abandoned his opposition. When however, the respondent No.1 proved to the satisfaction of the Registrar that he had left such evidence with the Registrar and furnished a copy of receipt thereof which contained the initial and rubber stamp of the Registry it was held by the Assistant Registrar that there was sufficient compliance with sub-rule (1) of Rule 53 by the opponent and being so satisfied reviewed the earlier order, accepted the evidence filed and recalled the earlier order dated 29.6.1995. The Assistant Registrar has considered the records for coming to the aforesaid conclusion and in the light of the provisions of Section 53 analyzed the record namely the receipts and the certificate of posting under which the opponent sent the copies of such evidence to the petitioner and no such scrutiny was satisfied that there was sufficient compliance of Rule 53 of the Rules. The respondent No.1 placed on record the receipt issued by the office of the Registrar of Trade Marks indicating filing of the evidence by way of affidavit. The said receipt contains rubber stamp of the Registry and is also initialed by an official. The said receipt therefore, has to be accepted as true and correct and authenticity of the same when accepted by the Registrar cannot be challenged. The submission of the counsel for the petitioner that the alleged communication of copies of such evidence to the petitioner by certificate of posting was not legal and valid in view of the decision of the Supreme Court in M/s L.M.S. Ummu Saleema (supra). The said decision was rendered by the Supreme Court while dealing with a case of detention under Conservation of Foreign Exchange and Prevention of Smuggling Activities Act. Such a detention is a matter relating to personal liberty of a person. In the context of the aforesaid facts it was held that there have been case in the past, though rare, where postal certificates and even postal seals have been manufactured. In the facts and circum-stances of the said case in paragraph 6 of the said judgment the Supreme Court held that no such letter of retraction was posted as claimed by the detent. In my considered opinion, in the present case no such evidence has been led by the petitioners to prove and establish that the postal certificate as placed in the present case has in any manner been manufactured or tempered with by respondent No. 1.

9. In the aforesaid circumstances I find no error in the impugned order passed by the Assistant Registrar of Trade Marks. The petition has no merit and is dismissed accordingly.