Harbans Lal Sharma Trading As Pandit Brothers vs Deputy Registrar Of Trade Marks And Amar Valves Private Limited

S. Jagadeesan, J

Appellant herein filed this appeal against the order of the Deputy Registrar of Trade Marks dated 19.6.1995 rejecting their opposition, treating the

same as abandoned by invoking the deeming provision under rule 53(1) of the Rules framed under the Trade and Merchandise Marks Act, 1958.

We heard learned counsel Shri V.P.Ghiraiya for the appellant and learned counsel Shri Shailen Bhatia for the second respondent.

It is unnecessary to discuss the facts of this case in detail since the opposition of the appellant was dismissed on the short ground that the same is

time barred and cannot be taken on record as Rule 53(2) is mandatory and the Deputy Registrar has no power to extend the time. In fact the Deputy

Registrar had relied upon two judgments of the High Court of Delhi in Hindustan Embroidery Mills Pvt. Ltd. v. Hemla Embroidery Mills Pvt. Ltd. and

Anr. in CM (M) 20 of 77 and CM (M) 59 of 95 wherein the learned single Judges have held that Rule 53(2) is mandatory and as such the deeming

provision under Rule 53(2) will automatically come into play on the expiry of the period specified under Rule 53(1). Both the learned counsel

represented that the judgments relied upon by the Deputy Registrar of Trade Marks were overruled by the Full Bench of the High Court of Delhi in

the case of Hastimal Jain Trading as Oswal Industries v. Registrar of Trade Marks and Anr., reported in 2000 PTC 24 and in view of the said Full

Bench judgment, the impugned order of the Deputy Registrar is liable to be set aside and the matter has to be remitted back to the Deputy Registrar

for fresh disposal. We also perused the Full Bench judgment as well as the impugned order of the Deputy Registrar. Though the judgment of the

Deputy Registrar may be correct as he relied upon the earlier judgment of the High Court of Delhi, now that these judgments have been overruled by

the Full Bench, it is appropriate that the matter has to be remitted back to the Deputy Registrar to consider the claim of the appellant on the principles

laid down by the Full Bench.

Accordingly we set aside the impugned order of the Deputy Registrar dated 19.6.1995 in application No.444803 of the second respondent and

remand the matter to the Trade Marks Registry for fresh consideration in accordance with law and the Assistant Registrar or the Deputy Registrar as

the case may of the Trade Marks Registry is directed to dispose of the matter within three months in view of the long pendency and report the same

this Board.