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Judgment
Prabha Sridevan, J
This appeal is against the order passed in the review petition filed by the appellant herein which is dated 02.01.2009. The appellant applied for
registration of trade mark No. 616950 in class 30 dated 18.01.1994. It was published in the Trade Marks Journal dated 21.08.2000. The respondents
filed notice of opposition. We are not going into the merits of the matter. After hearing the submissions of both the counsel, we are of the opinion that
the matter has to be sent back to the Registrar for de-novo adjudication. It is relevant to mention here that the respondent has also filed an appeal.
Therefore, it is not as if the respondent has accepted the order under challenge. Therefore, when the matter is heard de-novo both the parties shall be
permitted to raise all valid grounds available in law. For the purpose of the case on hand, it is relevant to state that the appellant claimed that they had
been using the mark since 1970 and that the opponents had no user in India. Specifically they submitted that the opponents had not filed any Deed of
Assignment in respect of their assignment claimed from M/s Aromatic Food Stuff Trading Dubai. This deed of assignment is said to be dated
14.10.2000. In the order passed by the Registrar on 26. 12.2002, which was sought to be reviewed, there is no reference to this document. We are
unable to see from the order whether the Registrar was satisfied that a Deed of Assignment had been filed and whether the Deed of Assignment was
at all before the Registrar. There is absolutely no mention regarding this Deed of Assignment.
2 . Thereafter, the appellant filed this review. He raised several grounds, inter-alia that the respondents had ""totally failed to prove any assignment
deed dated 14.10.2000"". The order on the review petition is again assailed regarding this document. All that the authority had to do was to examine the
file and see if the assignment deed had been filed before the Registrar. But this, the authority failed to do and therefore the appeal has been filed.
The learned counsel for the appellant submitted that there are judgments both of the Hon'ble Supreme Court and High Courts to show that when a
point is pressed and not dealt with, the remedy is to file a review and that is why they filed a review petition. The authority who dismissed the review
petition concluded that since the respondent had filed an appeal no grievance can be set right. This is clearly erroneous. In the appeal it is the
grievance of the respondent which will be answered. In fact if the appellant had not challenged the impugned order that may be held against him in the
appeal. Failure to deal with the point that is specifically raised especially with regard to existence of a documentary evidence is clearly an error
apparent on the face of the record and subject to review jurisdiction. In these circumstances, the appeal is allowed. The opposition proceedings No.
DEL-T-2248/57197 against trade mark application No. 616950B Class 30 is sent back to the Deputy Registrar who was to adjudicate matter de-novo.
We have not dealt with the merits. The question regarding the user on both sides, the entitlement, the claimed priority, the use all shall be tested by
the Registrar in accordance with law. This will not prejudice the rights of the parties in the civil suit. Both parties agreed that in view of the order
passed, as and when the appeal filed by the appellant is listed this order will bind them.