Delhi High Court
Maa Kamakhya Darbar Fragrances ... vs Shanti Dhoop Karyala & Another on 24 November, 2009
Author: Sanjiv Khanna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 8977/2008
MAA KAMAKHYA DARBAR FRAGRANCES INDIA ..... Petitioner
Through Mr. Sushant Singh, Advocate.
Versus
SHANTI DHOOP KARYALA AND ANR. ..... Respondent
Through Mr. M.K. Miglani, Advocate.
Mr. Sandeep Aggarwal, Adv. for R-2 & 3.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
ORDER
% 24.11.2009
1. Maa Kamakhya Darbar Fragrances India, have filed the present writ petition
against the order dated 4th December, 2008, wherein it was held that the application
filed by them for registration of the trade mark in class-3 was treated as abandoned
and the opposition filed by the respondent No.1 Shanti Dhoop Karyala as abated and
closed. The impugned order, records that the hearing was held on 20 th November,
2008.
2. The grievance raised by the petitioner is that they were not informed about the
hearing fixed on 20th November, 2008, and therefore the respondent registrar was not
justified in holding that the petitioner had abandoned their application. On the other
hand, the stand taken by the respondent No.1, Shanti Dhoop Karyala and the
W.P.(C) 8977/2008 Page 1
respondent authorities is that a notice for hearing held on 20th November, 2008, was
sent to M/s. Paliwal and Company, attorneys of the petitioner and therefore impugned
order is just and valid.
3. The petitioner has filed on record letter dated 8th November, 2007, written to
the Registrar of Trade Marks, Dwarka, New Delhi, intimating that there was change of
Advocate representing the petitioner and henceforth, the petitioner would be
represented by a different Advocate, whose name and address was mentioned in the
letter. A general power of attorney in favour of the Advocate was also enclosed with
the letter. The receipt of the said letter is not denied by the Registrar of Trade Marks.
There may have been lapse on the part of the petitioner or his attorney in non-filing of
requisite Form No. TM-7 and TM-16, but this by itself, I do not think, justifies dismissal
of the application for registration of trade mark, which had remained pending since
1999 on the ground that the petitioner had abandoned their application. The
petitioner and their advocate were not informed that the letter was not sufficient and
forms were required to be submitted. No correspondence or warning was given.
4. It is noticed that the petitioner had written a letter of protest dated 22nd April,
2008, to the Controller General of Patents, Designs and Trade Marks, Mumbai stating,
inter alia, that the last date of hearing was on 3rd April, 2006 and since then no hearing
had been fixed. Request was made that the Registrar, Trade Marks, Delhi should be
asked to fix a hearing in the matter. Pursuant to this letter, the Under Secretary,
Government of India had written letter dated 29th April, 2008 to the Controller General
W.P.(C) 8977/2008 Page 2
of Patents, Designs and Trade Marks, Mumbai. Another letter dated 12 th August, 2008
was written by the Assistant Registrar of Trade Marks to the Deputy Registrar of Trade
Marks, Dwarka, New Delhi enclosing therewith the petitioner's letter dated 22nd April,
2008, with a request that the application for registration along with
opposition/rectification should be posted for final hearing at the earliest. The
aforesaid letter clearly indicates that the petitioner had made a request for hearing
before the Registrar, Trade Marks, Dwarka, New Delhi. The contention of the counsel
for the respondent No.1 that the petitioner had not requested for personal hearing in
terms of Section 21(4) of the Trade Marks Act, 1999, is therefore not correct. In any
case, the application filed by the petitioner for registration of trade mark has been
dismissed on the ground that no one had appeared on behalf of the petitioner on 20 th
November, 2008 and therefore the application is deemed to be abandoned.
5. Counsel for the respondent No.1 submitted that the impugned order is
appealable and therefore the present writ petition should not be entertained in view
of alternative remedy. The present case is one wherein notice of hearing was not
served on the petitioner or their representative. Principles of natural justice have been
violated and personal hearing was not granted. The writ court can therefore interfere,
even if alternative remedy is available to the petitioner. Moreover, the present writ
petition has remained pending in the Court for about one year.
6. In view of the aforesaid peculiar facts, the impugned order dated 4th December,
2008 is set aside and the matter is remanded back to the Registrar, Trade Marks,
W.P.(C) 8977/2008 Page 3
Dwarka, New Delhi. The parties will appear before the Registrar on 17 th December,
2009, when further date of hearing will be fixed. In the facts and circumstances of the
case, there will be no order as to costs.
SANJIV KHANNA, J.
NOVEMBER 24, 2009
NA
W.P.(C) 8977/2008 Page 4
