Kennametal Gmbh And Co. Kg A German Company vs Assistant Registrar Of Trade Marks

Raghbir Singh, J

The appeal is against the order of the Assistant Registrar of Trade Marks dated 19.3.2004 wherein the application of the appellant was refused

under section 9 of the Act. The grievance of the appellant is that the Assistant Registrar did not give any reason to arrive at the conclusion that the

mark is not registrable except a cryptic statement in the order which is as follows:-

Pursuant to the hearing held on 03/03/2004, I am directed by the Assistant Registrar of Trade Marks to inform that the following applications are

REFUSED""..........

We have perused the Trade Mark Rules, 2002 framed under the Trade Marks Act, 1999 with regard to the powers of the Assistant Registrar to

pass such orders. In fact, Rule 40 which deals with ""Decision of Registrar"" empowers the Registrar to communicate his observations in writing to the

applicant and if the applicant intends to appeal from such decision, he may within one month from the date of such communication apply on Form TM

15 to the Registrar requiring him to state in writing the grounds of, and the materials used by him in arriving at, his decision.

Admittedly, the appellant did not choose to apply on Form TM 15 and approached this Board by way of appeal. The learned counsel for the

appellant, on our query in respect of non compliance of the procedure contemplated under the Act, replied that the Assistant Registrar does not

comply with the requests of the applicants on Form TM 15 within any reasonable time and if such request is made, the matter is kept pending before

the concerned authority for months together and this causes further delay in the process of registration. Hence, to avoid the delay, the appellant has no

other option except to approach the appellate authority.

We have carefully considered the above submission of the learned counsel for the appellant. When the statute prescribes the procedure, we are of

the view that the said procedure must be followed and it cannot be given a go -bye for the convenience of the parties. Though we agree with the

learned counsel for the appellant that the order is a cryptic one, as already pointed out, Rule 40 of the Rules framed under the Trade Marks Act, 1999

envisages such circumstances. Hence, it is for the appellant to make a request on Form TM 15 and the Assistant Registrar of Trade Marks has to

comply with such a request.

As the said rule stipulates a period of one month from the date of receipt of the impugned order, for the appellant to make a request on Form TM

15, in view of the filing of the appeal, we direct the appellant to make the request on Form TM 15 within thee weeks from the date of receipt of a

copy of this order and the Assistant Registrar is directed to receive the same irrespective of the period of limitation contemplated under the statute and

comply with the same. It is further directed that the Assistant Registrar must avoid unnecessary delay in the compliance of the request of the

applicant and furnish a detailed order within three months from the date of receipt of request on Form TM 15.

In view of the above, the request for inclusion of additional documents made under M.P.No. 115/2004 by the appellant cannot be entertained at this

stage. The appellant may choose to make such a request as and when it decides to file an appeal as against the order of the Registrar. The appeal is

disposed of accordingly.