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Judgment
S. Usha, J
The appeal has been preferred against the order dated 06.08.2007 passed by the Assistant Registrar of Trade Marks treating the application to
have been abandoned under section 21 (2) of the Trade Marks Act 1999. The appellant filed an application for registration of the trade mark under
No. 735892 in class 5 on 28.02.1997. The mark was proposed to be used on the date of application. The said trade mark was advertised in the Trade
Marks Journal No. 1327 dated 03.01.2005 at page Nos. 137 & 138. Even before the mark was advertised in the Trade Marks Journal, the appellant
had filed a request on Form TM-16 for recording the change of address - both the appellants and the agents (Advocate).
2 . In the second week of September 2007, the appellant received a letter dated 03.09.2007 from one Mr. Rajvi Vipul Bhagat intimating that the Trade
Mark Registry had passed an order in Opposition No. AMD 199088 against application No. 735892 in class 5. The order copy was enclosed where
the application was abandoned with costs of Rs. 2,500/-. On receipt of the letter, the appellant become aware of the impugned order. The appellants
immediately made a search and applied for the impugned order and the notice of opposition filed by the opponent which was not received by the
appellant earlier to the impugned order.
3 . Aggrieved by the impugned order, the appellants filed this appeal on the ground that the order in ex-facie illegal and untenable in law and on various
other grounds.
4 . The respondents in spite of the service of notice did not enter appearance. The respondents were therefore set ex-parte and we proceeded to hear
the appellants.
The appellants reiterated whatever was stated in the memorandum of grounds of appeal.
6 . We have heard and gone through the pleadings and documents and the lower court records.
From the Trade Marks Registry records it is seen that the request on Form TM-16 for change in address dated 06.07.2001 has been received by
the Trade Marks Registry. We do not see any formal order allowing the request for change was allowed. But subsequent to that on 19.11.2003 the
acceptance order is sent by the Registrar to the appellant at the new address. If that be so, then it is to be presumed that the request on Form TM-16
has been allowed. But in the Trade Mark Journal Advertisement it is seen that the old address is given in the year 2005. That is the cause for this
appeal. Probably, the notice of opposition has been sent to the old address and that the appellant could not file their counter statement which led to the
application treated as deemed to be abandoned under section 21(2).
The other grievance of the appellant is that the notice of opposition has been filed after the prescribed time and ought not to have been taken on
record. We are not going into that issue as there is no mention as to when the Journal was made available to the public either in the notice of
opposition or in the Registry records.
The officer concerned shall take due care before passing any order of this nature. The officer on receipt of the request should have considered and
passed an order for the change and necessary corrections if it were carried out, then there would have been no mistake in the Journal advertisement.
If that had been done, then the notice of opposition would have been sent to the correct address which would not have resulted in this appeal. By such
casual approach, it only leads to multiplicity of proceedings. For the reasons stated above, we remand back to the Registrar of Trade Marks for
further action. The Registrar shall ascertain as to whether the notice of opposition has been filed within time and if satisfied, issue a letter to the
appellant to file their counter statement within two months from that date and deal with the matter in accordance with law. Accordingly, the appeal is
allowed with no order as to costs.