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Judgment
Prathiba M. Singh, J
CM APPL. 5376/2020(Exem)
Allowed, subject to all just exceptions. Application is disposed of.
W.P.(C) 1539/2020, CM APPL. 5374/2020 & 5375/2020
The present petition has been filed challenging the impugned order dated 24th October, 2019 passed by the Examiner of Trademarks, by which
various applications under Form TM 24 in respect of Trademark Registration No. 324220 have been treated as disposed of. Ld. counsel for the
Petitioner submits that notice dated 16th September, 2019 issued by the Registry was in fact replied to by the Petitioner on 19th October, 2019.
However, the Registry has proceeded on the premise that no response was in fact filed and has disposed of the applications without either allowing or
rejecting the assignments.
The background of this petition is that the trademark FALCON was granted registration vide registration No. 324220 in Class 09 on 31st March,
1977. The same was registered in the name of the partnership firm Goel Industries. The said partnership firm is stated to have been dissolved on 31st
March, 1985. Subsequently, various assignment requests were filed on 26th February, 1990, 30th April, 1999, and 21st March, 2007. Notice was
issued by the Trade Marks Registry (TMR) on 6th September, 2012 to the following effect:
“ To:
Dated: Thursday, September 06,2012 LOGIC TRADE MARK COMPANY 96, SUKHDEV VIHAR, MATHURA ROAD, NEW DELHI-110 025.
Subject:
Request on Form No: TM-24 in respect of Registered TradeMark No.: 324220 in Class: 9 dated: 3/21/2007 in the name of M/s. MANGI LAL
Sir,
With reference to the above your attention is invited to the following paragraphs:
That as per the records of the Trademarks Registry aforsaid trade mark stands registered in in the name of MANGILAL, whereas the
assignment deed has been executed by VISHAL GUPTA (assignors/transferor). You should explain the discrepancy.
You should file an affidavit to the effect of these that no proceddings are pending relating to the subject trade mark in any Court of Law
or tribunal. In case any such proceddings are pending, please enclose the details and also details of any order(including interim) passed by
the Court of tribunal.
You are requested to comply with the above requirements within 30 days.The matter shall be re-examined further on compliance of above
request.â€
The same is stated to have been replied to by the Petitioner on 26th September, 2012. The request however, continued to remain pending
despite various hearing notices having been issued. A further notice was received on 16th September, 2019, which reads as under:
“To:
Dated: September 2019
LOGIC TRADE MARK COMPANY
96, SUKHDEV VIHAR, MATHURA ROAD, NEW DELHI-110 025.
Subject:
Request on Form_No.: TM-24 in respect of
Registered TradeMark No.: 324220 in Class:9
dated: 21/03/2007 in the name of M/s. MANGI LAL
Sir,
With reference to the above your attention is invited to the following paragraphs:
That as per the records of the Trademarks Registry aforsaid trade mark stands registered in the name of MANGILAL, whereas the
assignment deed has been executed by VISHAL GUPTA (assignors/transferor). You should explain the discrepancy.
You should file an affidavit to the effect of these that no proceddings are pending relating to the subject trade mark in any Court of Law
or tribunal. In case any such proceddings are pending, please enclose the details and also details of any order(including interim) passed by
the Court of tribunal.
You are requested to submit your reply for the above / or required documents if any at e-mail [email protected]
You are requested to comply with the above requirements within 30 days. The matter shall be re-examined further on compliance of above
request. If no reply is received within above mentioned stipulated time, the request shall be treated to have been abandoned for lack of
prosecution u/s 132 of Trade Marks Act, 1999.â€
This was again replied to by the Petitioner on 19th October, 2019. However, without taking any of the responses into consideration, the impugned
order appears to have been passed stating that no response was filed by the Petitioner. The impugned order reads:
“To:
Dated: 24 October 2019
LOGIC TRADE MARK COMPANY
96, SUKHDEV VIHAR, MATHURA ROAD, NEW DELHI-110 025
Subject: Request on Form No: TM-24 in respect of Registered TradeMark No.: 324220 in Class: 9 dated 21/03/2007 in the name of M/s. MANGI
LAL Sir,
With reference to the above your attention is invited to the following paragraphs:
Trademark request likely to be removed due to non response of office correspondence dated 16 September 2019 in prescribed time limit, hence
treated as disposed off.â€
Ld. counsel appearing for the Petitioner, Mr. Sudershan K. Bansal submits that the response was filed on both occasions, however, the Registry
has not taken the same into consideration and has erroneously disposed of the same. Ld. standing counsel appearing for the Union of India, submits
that he wishes to seek instructions from the Department as to whether the response was in fact received.
With the modernisation in the Trademark Registry, the records of the Registry are now available online. Ld. counsel for the Petitioner has produced
an electronic copy of the online record which shows that the response dated 19th October, 2019 was in fact uploaded on the website of the Registry.
This Court has also verified the same from the online status on the website http://ipindiaonline.gov.in, by accessing the same in the Court, which shows
that the letter dated 19th October, 2019 has been submitted by the Petitioner. Under such circumstances, there was no occasion for the Trademark
Registry to dispose of the request for assignment by simply recording that no response was filed. It is clear that the Examiner who has issued the
order dated 24th October, 2019 has not even conducted a basic search of the online record. Moreover, the uploading date of the letter dated 19th
October, 2019 is shown as 21st October, 2019 on the online status. The impugned order, which has been issued on 24th October, 2019 does not take
into consideration the letter uploaded on 21st October, 2019, which clearly is an error. The subsequent representation of the Petitioner dated 20th
November, 2019 has also gone unanswered.
The impugned order dated 24th October, 2019 is accordingly set aside. The Trademark Registry is now directed to take a fresh decision on the
Forms TM â€" 24 and any other accompanying requests filed by the Petitioner. The assignment requests shall be processed in accordance with law.
If any further documents are required from the Petitioner, the Petitioner shall be called upon to submit the same. This Court has not examined the
merits of the Forms TM - 24 submitted by the Petitioner and whether or not they satisfy all the requirements. The Registry to pass a fresh order after
hearing the Petitioner.
The petition is allowed in the above terms. The petition and all pending applications are disposed of.