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Judgment
S. Usha, J
Appeal arises out the order dated 6th February, 2008 dismissing the request on Form TM-57 being not maintainable passed by the Deputy Registrar
of Trade Marks.
The brief facts of the case are the Appellant herein filed an application for registration of the trade mark MIMPARA under application No.
1219475 in class 5 in respect of pharmaceutical preparations as proposed to be used mark. The application was duly examined and examination report
was sent to the Appellant's agent. The objections in the examination report were under Section 11 & 12 of the Trade Marks Act, 1999 (hereinafter
referred to as the Act). The Appellant's were granted hearing in the matter and Appellant's submissions were considered and the application was
refused registration on 23rd February, 2004. The Appellant's herein filed an application on Form TM-57 to review the order dated 23rd February,
2004. The matter was set down for hearing and after hearing the counsel submissions the said Form TM-57 was dismissed as not maintainable by
order dated 5th December, 2007. Against the said order, the Appellant's herein filed a request on Form TM 15 for the grounds of decision. The said
form TM-15 was dismissed as being not maintainable. Aggrieved by the said order, the Appellant's are before us on appeal. The memorandum of
counsel for the Appellant's are:
(i) the order of Deputy Registrar is contrary to the procedural law laid down in the Act and is liable to be set aside.
(ii) the refusal of the Form TM-57 for want of maintainability is erroneous.
(iii) Section 127 (c) of the Act provides that the Registrar may on an application made in the prescribed manner, review his own decision.
(iv) It is laid down in the Rule 40(1) of the Trade Marks Rules, 2002 (hereinafter referred to as the rules) that a Form TM-15 has to be filed to obtain
the detailed grounds of the decision of the Registrar if the applicant intends to appeal from the decision of the Registrar.
(v) Rule 40 (1) of the rules does not necessitate obtaining the detail ground of the Registrar's decision for the purpose of filing a review.
The Appellant therefore prayed that the appeal be allowed.
We have heard counsel for the Appellant Ms. Joy Ravi, Learned Counsel for the Appellant reiterated of the averments made in the grounds of
appeal and prayed that the appeal be allowed and the order be set aside.
We have heard and considered the argument of the counsel for the Appellant.
The prayer sought for in the appeal itself is not maintainable in our considered opinion. ""The order dated 6th February, 2008 by the Deputy Registrar
may be set aside and the order dated 15th March, 2004 be reviewed by the Registrar as there is no error in the order.
The Appellant has adopted a procedure which cannot be legally said to be a proper one. When the application was refused for registration under
Section 12 of the Act, the Appellant ought to have followed the proper procedures by filing an application on Form TM-15 for the grounds of decision
and not an application for review on TM-57.
An application for review can be filed only to review an order on decision if there was any error or mistake apparent on the face of the order and
not otherwise. We are of the view that the Registrar was right in dismissing the application for review as not maintainable.
The subsequent application for grounds of decision of Form TM-15 was filed for obtaining the statement of grounds of decision. The request on
Form TM-15 is maintainable only for the decision of the Registrar under Rule 38 after hearing the parties at the acceptance stage or under Rule 42
after the hearing but before the registration. There is no provision for filing a request on Form TM-15 against an order dismissing the review petition.
We therefore find no merits in the appeal and is liable to be dismissed. The appeal is dismissed with no order as to costs.