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Judgment
S. Usha, J
Appeal arising out of the order dated 20/12/2002 and 29/04/2003 respectively passed by the Deputy Registrar of Trade Marks dismissing the
Opposition and allowing the application No. 609298 in class 12 to proceed to registration under the provisions of the Trade and Merchandise Marks
Act, 1958 (hereinafter referred to as the Act).
The brief facts of the case are:The 1st Respondent herein filed an application for registration of the trade mark KENT (label mark) in respect of
Bicycle Spokes, Parts & Fittings therefore on 12.10.1993 under No. 609298 in class 12. The Appellants herein are the partnership firm M/s. Northland
Cycle Works & Mr. Harsh Sehgal. They filed their notice of opposition under No. DEL-T-1546/54776 & DEL-T-1547/54775. The 1st Respondent
herein filed their counter statement. On completion of the formal procedure the matter was set down for hearing. Meanwhile, the Appellants herein
filed an interlocutory petition to decide the preliminary issue as regards the applicants proprietorship as the applicants ie. the 1st Respondent himself
had admitted that they are not the proprietors of the impugned trade mark applied for registration and also that the trade mark KENT is a surname and
name of the city in US and not registerable under Section 9 of the Act.
On the date of hearing, the 2nd Respondent herein insisted that the main matter be argued and not only the interlocutory petition. The counsel for
the applicants as was prepared only to argue the interlocutory petition and not the main matter withdrew his power of attorney and requested that a
notice be sent to the party directly. The 2nd Respondent instead set the Appellant ex parte, and heard the 1st Respondent in the main matter. The
Appellants filed a review petition on the same date after the hearing. The 2nd Respondent dismissed the review petition and decided the main matter
on merits and passed an order on 20.12.2003.
The Appellants therefore preferred an appeal against the impugned order dated 20.12.2003 before the Hon'ble High Court of Delhi in CM (M) No.
231/03 & CM(M) No. 232/03 respectively. Simultaneously filed a review petition before the Registrar of Trade Marks. Pending the above two
appeals the Registrar passed an impugned order on 29.4.2003 dismissing the Review Petition. Against the said order the Appellants have preferred the
other two appeals before the Hon'ble High Court of Delhi in CM(M) No. 50/03 and CM(M) No. 511/03. Pursuant to the provisions of Section 100 of
the Trade Marks Act, 1999, the four appeals have been transferred to this Appellate Board and re-numbered as TA/200/2003, TA/201/2003,
TA/205/2003 and TA/206/2003 respectively.
Aggrieved by the said order the Appellants have preferred the said appeal on the grounds:
a) that the impugned order is illegal, arbitrary and is against the facts of the case and also bad in law and unjustified and is liable to be set aside;
b) that the second Respondent has seriously erred in passing the impugned order which has been passed in haste and without applying the mind
properly and not in accordance with law;
c) the second Respondent has seriously erred in passing the impugned order without affording sufficient opportunity of being heard where thus is
violative of the maxim audi alteram partem and is liable to be set aside;
d) the second Respondent has seriously erred in passing the impugned order dismissing the opposition without appreciating that the first Respondent
had not discharged the burden of proving the registrability of the mark under the provisions of Section 9 of the Act;
e) the second Respondent has seriously erred in not appreciating the fact that the first Respondent was not using the trade mark and had never used
the same and had rather admitted to have been manufacturing the goods for the Appellant. As such the first Respondent cannot claim to be the
proprietor of the mark under Section 18 of the Act;
f) the second Respondent has seriously erred in not appreciating the fact that the intention of the first Respondent is only to monopolies the mark by
usurping the same and registering it and to create problems for the Appellant and to harass the Petitioner who are openly, continuously and exclusively
using the same since 1976;
g) the second Respondent has seriously erred in not appreciating the fact that by allowing the registration in favour of the first Respondent would only
result in the multiplicity of the litigation between the parties;
h) the second Respondent has seriously erred in not appreciating the fact that the first Respondent has not filed any evidence regarding the sale of the
goods under the trade mark 'KENT';
i) the second Respondent has seriously erred in holding that the Appellant has not made out the case under Section 11(a) and 11(e) of the Act.
In view of the above facts and circumstances, it is therefore prayed that the appeal be allowed and set aside the impugned order dated 20.12.2002.
The first Respondent filed their counter statement denying the averments and allegations made in the memorandum of grounds. The first
Respondent had stated that they started the business under the name and style of Vimal Wires and had been carrying on business in respect of
Bicycle spokes, parts and fittings thereof since 1976. The first Respondent has widely published the registered trade mark through various media and
the public associate, the trade mark with their goods and with none else.
The first Respondent has also been manufacturing cycle spokes for M/s. Northland Cycle Co. which was getting manufactured the goods from the
first Respondent and selling the same in the open market.
The matter was posted for hearing on completion of the pleadings on 5.7.2010 and subsequently on various dates where the Respondent did not
appear either in person or through their counsel and therefore were set ex parte, on 8.7.2010 and the matter was finally posted for hearing on
4.8.2010. Shri Shailen Bhatia appeared on behalf of the Appellant.
The learned Counsel for the Appellant contended that in the impugned trade mark application, the 1st Respondent had claimed user since 1968
whereas in the counter statement to the notice of opposition, they claim user since 1976 and therefore there are contra statements as to the date of
use. In this regard the counsel submitted that the trade mark ought to be re-advertised giving fuller and correct particulars for the opponent to oppose
the same effectively. In support thereof the counsel relied on the judgments reported in 2000 PTC 161 High Court of Delhi, Ashoka Dresses (Regd)
v. Bonn's Shirts and Anr. 2002(25) PTC 50(Del) Virendra Sethi v. Kundas Das & Ors, and 2007 (34) PTC 346 (IPAB) Titan Industries Limited v.
Registrar of Trade Marks and Anr.
The counsel further contended that the 2nd Respondent had also observed in the impugned order at page 3, ""The learned Counsel did not
participate in the final hearing by himself withdrawing the power of attorney extended in his favour by the opponents. The matter proceeded ex parte,
and a speaking order was passed in this respect by announcement of the close of the hearing and order in the main matter was reserved"". In such
circumstance the registrar ought to have issued notice to the party calling on him to participate in the proceedings either in person or through a
counsel. The Appellant has therefore been deprived of the opportunity of hearing. In this regard the counsel relied on the judgment reported in , AIR
1993 SC 1182 : 1987(2) CCC (Bom) 424 and an unreported case - CM (M) 294/94 before the Delhi High Court.
We have heard and considered the arguments of the counsel for the Appellant and have gone through the pleadings and documents. The only
issue to be decided is whether the Registrar was correct in passing the impugned order dated 20.12.2003 without serving notice on the Appellant and
hearing. As the issue involved is one and the same in all the four matters, a common order is being passed.
It is worthwhile quoting the observations made in the judgments relied on by the Appellant. In 1987(2) CCC (Bom) 424 at para 9, it was held as -
Even when it is shown to the Court that there is sufficient compliance with the provisions of the rule, as stated hereinabove, it would be desirable
and proper that the Court insists for the presence of the party in the Court before permitting the advocate to retire from the case. In case, the Court
feels that it is impossible for the advocate or it is very much difficult for him to secure the presence of the party, the advocate may be permitted to
retire. However, before doing so the Court must feel satisfied that the provisions of the aforesaid rules are complied with. Thereafter the Court ought
not to proceed further in absence of the parties. The Court itself must make efforts to secure the presence of the parties. At any rate, without issuing
fresh summons directing the party to remain present in the Court (either personally or through advocate) and without informing him about the
necessity to make appropriate arrangements for proceeding further with the case, the Court should not take further steps in the case. If this is not
done the object and the spirit with which the aforesaid rule has been enacted by the Bar Council of India, will be frustrated. Moreover, the basic
principles of natural justice will also be violated.
In AIR 1993 SC 1182 the learned judge held at para 4 as:
It was not disputed in the present case that on March 15, 1974 when Mr. Adhia, advocate withdrew from the case, the Petitioners were not present
in court. There is nothing on the record to show as to whether the Petitioners had the notice of the hearing of the case on that day. We are of the
view, when Mr. Adia withdrew from the case, the interests of justice required, that a fresh notice for actual date hearing should have been sent to the
parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to
suffer.
On the above lines of observation, in the case on hand, it is clear that the Registrar ought to have issued notice to the parties before hearing the
main case. It is also observed in the impugned order that the counsel withdraw his power of attorney, in such circumstances, the Registrar was bound
to have issued notice to the Appellant.
The basic principle of law is that no litigant should be put to suffer for non compliances of the procedures. The litigants should also not suffer for
no fault of their. In the interest of justice, the Registrar ought to have issued notice calling upon the Appellant by providing them an opportunity of
being heard.
In view of the above, the opposition Nos. DEL-T-1546/54776 & DEL-T-1547/54776 to application No. 609298 in class 12 are remanded back to
the Registrar to hear both the parties and decide the matter on merits. Accordingly, TA/200/2003/TM/DEL & TA/201/2003/TM/DEL are allowed
with the above directions. The appeals under No. TA/205/2003/TM/DEL and TA/206/2003/TM/DEL are dismissed, in view of the above directions in
TA/200/2003/TM/DEL and TA/201/2003/TM/DEL as infrutuous. There shall be no order as to costs.