M/S. Dandi Salt Private Limited,3051, Ambaji Market, Mela Darwaja, Ring Road, Surat – 2 vs Registrar Of Trade Marks, Trade Marks Registry, 15/27, National Chambers, 1st Floor, Ashram Road, Ahmedabad – 380009

Prabha Sridevan, J

1 . This appellant is aggrieved since the matter was before the Registrar where the delay in filing Form-57 was condonable and the Registrar after

condoning the delay proceeded to examine the mark which is DANDI SALT and refused to grant registration.

2 . The learned counsel for the appellant submitted that the application for registration was examined on 27.04.2002 and the examination report was

issued raising objections under Sections 9 & 11 and the exact date of user was also asked to be provided. The appellant had given his reply on

22.05.2002. The hearing was fixed on 17.05.2010 and the mark was treated as abandoned on the same day. On 15.09.2010 a review of the decision

treating the mark has abandoned was sought for. There was a delay.

The learned counsel submitted that the order shows that the Registrar had verified the electronic records but and found the abandonment order had

not been communicated to the appellant and the delay was condoned. The learned counsel submitted that once the delay was condoned, the matter

should have proceeded further and instead the Registrar decided the question whether the application should be granted or not and refused to grant

registration on the ground of Section 9 (1) (b) and lack of defectiveness.

4 . The learned counsel submitted that this was a clear violation of principles of natural justice, since the appellant did not know that the registrability of

the mark would be taken for consideration on the day. It was only posted for hearing whether the delay in filing TM-57 is to be condoned.

It is seen from the order that the counsel had appeared before the Registrar and submitted that they had not received the hearing notice on the

order of the abandonment and the reviewed must be consider and the delay must be condoned and the Registrar had rightly condoned the delay. The

question is whether Registrar should have proceeded further. In this case, the learned counsel for the appellant has also produced the order passed by

the Division bench of the Andhra Pradesh High Court in Writ Petition no. 14562 and the review filed thereon. In the Writ Petition, the Andhra

Pradesh High Court had granted the relief of prohibiting, stocking and marketing the kitchen salt under the Trade Mark DANDI and directed the

authorities concerned under the Emblems and Names (Prevention of improper use) Act, 1950 to take steps in accordance with the Act to ensure the

Mahatma Gandhi's picture or the name Dandi is not used for commercial purpose.

6 . On review, the Division Bench after considering relevant Sections of the prohibition of improper use of certain emblem and the fact that

applications were pending before the authorities for use of mark DANDI under the following directions.

As the review petitioners have filed complaints/objections both before the company Law Board, Mumbai with regards use of the name Dandi mark

'DANDI' before the Registrar of Trade Marks, Ahmedabad, and since Section 4(2) enables the said authority, if he has any doubt in this regard, to

refer such questions to the Central Government for its decision, we consider it appropriate to direct the said authorities to examine, whether or not

such use of the name ""DANDI' is in violation of Sections 3 and 4 read with Entries 7 and 9-A of the Schedule to Act 12 of 1950, and pass appropriate

orders in accordance with law.

7 . The Registrar had given certain reasons for refusing registration. We have not gone into the merits of those reasons. Our order directing the

Registrar to consider a fresh is not to be understood as acceptance of the registrability of the mark Dandi. The only reason why we are returning this

matter for hearing by the Registry is that the appellant did not know that question of registrability would be taken up on that date. The only matter

before the Registrar on that was Condonation of Delay. The appeal is allowed and the matter is remanded back to the stage at which the impugned

order passed i.e. before the acceptance and Registrar shall proceed with the matter in accordance with law and the directions of the Hon'ble Andhra

Pradesh High Court extracted above.