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Judgment
S. Usha, J
1 . The instant matter was posted for maintainability of the appeal, as it was filed without condonation of delay fees. The matter was heard and a
direction was given to the appellants to pay the fees within three weeks from the date of order. The date of the order was 27/07/2012. There was also
a direction to the Registry to post the matter on 28/08/2012. Therefore the matter was listed on 28/08/2012. On 28/08/2012, the learned counsel for the
appellant submitted that there has been a delay in paying the condonation fees and that the delay may be condoned. The reason for delay was that an
order was passed by the Trade Marks Registry restoring the application which was removed for non-payment of renewal fees. Now that the
application has been restored, the appeal has become infructuous and the need to pay the condonation fee was not necessary and they do not intend to
pursue the matter.
We have heard and considered the appellant's counsel.
The facts of the case is as given under:-
The appellants filed an application for registration of the trade mark EVEREST (label mark) on 10/12/1990 in class 3. The said mark was advertised in
the Trade Marks Journal on 21/08/1999. The same was opposed and the Registrar passed an order dismissing the opposition and allowing the
application for registration. Against which the applicant therein had preferred a Review Petition which was also dismissed on 13/12/2002. The
appellants did not receive the Registration Certificate.
In November 2007, from the official website, the appellants came to know that the trade mark was registered. The appellants on 05/12/2007 made
a request on Form 12 for renewal. On 18/06/2008, the Registrar of Trade Marks sent a letter stating that the trade mark is likely to be removed as the
renewal fees has not been paid in time. On 11/07/2008, the appellant wrote a letter to the Registrar stating that they had not received the Certificate
as well as the 0.3 notice and that they came to know of the registration only from the official website. On 25/07/2008, the Registrar refused to renew
the trade mark registration. On 30/07/2008 and on 12/06/2009, the appellants requested for renewal but the same was not renewed.
5 . Being aggrieved by the said order, the appellant filed a Writ Petition before the Hon'ble Delhi High Court on 12/12/2009. The Writ Petition was
dismissed on 16/12/2010. On 10/01/2011, Letters Patent Appeal was preferred against the said order. On 10/02/2011, the Division Bench of Hon'ble
Delhi High Court passed an order granting liberty to the appellant to file an appeal before this Board. The appellants therefore filed the appeal without
the condonation fees.
6 . The appellants contention was that the necessary fees for condonation was not necessary as liberty was granted the Division Bench. This Board
held that it was for the appellant to comply with law and pay the requisite fees within three weeks. The appellant was to pay the fees by 17/09/2012.
7 . The counsel for the appellant placed before us the order passed by the Registrar on 16/07/2012 and also the noting dated 13/06/2012 of the
Registrar of Trade Marks. We had also called for the lower court records. We have perused the same.
8 . On perusal of the records, it is seen that the appellants were present before the Registrar for the hearing on 13/06/2012. The restoration order has
been passed on 16/07/2012 after hearing the appellants counsel. The order to pay the condonation fees has been passed on 26/07/2012. The
appellants, in our opinion, could have brought to the attention of this Board as to the personal hearing held on 13/06/2012 before the Registrar and
could have requested for deferring the matter. The Registrar has passed the order on 16/07/2012 even before this Board's order dated 26/07/2012.
The appellants would argue that they had not been communicated the order dated 16/07/2012 and came to know of the same only through the
Registry website after the orders of this Board dated 26/07/2012. The appellants have not brought it to the notice of this Board about the personal
hearing and their appearance for some reason or the other. In view of these reasons, we do not think it fit to pass any order other than the order dated
26/07/2012. We direct the appellants to pay the condonation fees within two weeks from the date of receipt of this order.