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Judgment
K.N. Basha, J
This appeal is preferred by the appellant challenging the order of the Deputy Registrar of Trade Marks dated 17.11.2009 dismissing the Interlocutory Petition dated 19.09.2009 filed by the appellant herein. The appellant filed an application seeking for registration of a trade mark PREETHAM (label mark) advertised under application No. 1496400 in class 21, under proviso to Section 20(1) in Trade Marks Journal No. 1383 dated 01.01.2008. The respondent herein filed a Notice of Opposition raising objection against registration of the aforesaid mark under various provisions of Section 9, 11 & 18 of the Act & Rules (hereinafter referred as Act & Rules). The appellant filed the Counter Statement to the Notice of Opposition.
Perusal of Interlocutory Application filed by the appellant herein discloses that a specific objection was raised to the effect that TM-5 has not been signed by the opponent and has not been verified in accordance with the trade marks law and hence the same is liable to be rejected as it was signed by the advocate for the opponent who was authorized to prosecute the case by raising such grounds, the appellant herein sought for dismissal of the notice of opposition.
The respondent herein also filed a Counter Statement to the Interlocutory Petition filed by the appellant. It is specifically stated by the respondent in the Counter Statement that the Notice of Opposition (TM-5) was singed by the Agent/Constituted Attorney for the opponent. Rule 48(2) of the Trade Marks Rules clearly states that the Notice of Opposition shall be verified at the foot by the opponent or by some other person who is acquainted with the facts of the case. It is mentioned by the respondent in the said counter that the appellant is a perpetual infringer and had applied for registration of the mark PREETHAM with the malafide intention to ride on the goodwill of the opponent. The respondent also placed reliance on the Impugned Order dated 13.03.2008 passed against the appellant in opposition No. MAS-248212 against his application No. 1391773 in Class 21. The respondent sought for dismissal of the said Interlocutory Petition No. 1391773. Deputy Registrar considered the contentions of both sides and also quoted and relied provisions under rule 48(2) and held that the notice of opposition shall be verified at the foot by the opponent or some other person who is acquainted with the facts of the case. By assigning such reason, the Deputy Registrar of Trade Marks Registry dismissed the Interlocutory Petition filed by the appellant herein. Being aggrieved against the said order, the present appeal is preferred by the appellant.
Mr. Sathish Kumar, learned counsel appearing for the appellant vehemently contended that Impugned Order passed by the Deputy Registrar is liable to be set aside on the sole ground that the Deputy Registrar has overlooked the provision under Rule 25(1) wherein it is specifically stated that an application to the Registrar for the registration of a trade mark shall be signed by the applicant or his agent and in that provision there is no reference that any other person acquainted with the facts or a legal practitioner. It is contented by the learned counsel for the appellant that Rule 48(2) should be read along with rule 25(1) and in any such event, the advocate who is appearing for the party namely the respondent herein cannot sign the Form TM-5. It is further contended that Section 145 of the Act cannot be read in isolation with the provision under rule 25(1) and 48(2).
Yet another contention put forward by the learned counsel for the appellant is that in Form TM-48, the respondent herein specifically states that the advocate has been authorized to file the notice of opposition and on that ground itself the notice of opposition is liable to be dismissed in limine.
In contra, Shri N. Surya Senthil, learned Counsel for the respondent contended that there is no illegality and infirmity in the Impugned order passed by the Deputy Registrar. It is contented that the Deputy Registrar has assigned valid reasons by rightly placing reliance on the provision under rule 48(2). As the said rule makes it clear that a notice of opposition shall be verified at the foot by the opponent or by some other person who is acquainted with the facts of the case. As such, the advocate who is appearing for the opponent is well acquainted with the facts of the case and he is competent to verify and sign the Form TM-5. It is further contended that in Form TM-48, the advocates of the opponent have been duly authorized in respect of the registration of the trade marks in general and the same is like a General Power of Attorney and as such the appellant cannot raise any objection as the same would include even filing of notice of opposition. The learned counsel for the respondent would also place reliance with the provision under Section 145 of the Act which authorize a legal practitioner to file the notice of opposition. The learned counsel for the respondent would also place reliance on the order No. 195/2011 of IPAB (downloaded from its website) in ""M/s. New Bharat Rice Mills, Punjab v. U.V.
Enterprises, Australia"". The Bench of the Board held "that the pleadings are to be signed by the authority and its pleader, if any. And the same is in accordance with Order VI, Rule 14 C.P.C.". It is also denied by the learned counsel for the respondent that he is a habitual infringer of trade Mark.
We have given our careful consideration to the rival contentions put forward by either side and gone through the materials on record including the impugned order.
At the outset we are constrained to state that the appellant by filing a Interlocutory Petition has raised hyper-technical objection to the effect that a legal practitioner i.e. an advocate who is appearing for a party more particularly for the respondent herein is not authorized to file a notice of opposition as per Form TM-5. The Deputy Registrar by passing through his brief impugned order straightaway placed reliance on Rule 48(2) of the trade mark rules which reads "A notice of opposition shall be verified at the foot by the opponent or by some other person who is acquainted with the facts of the case". The reading of the above stated provision makes it crystal clear that a notice of opposition shall be verified at the foot not only by the opponent but also by some other person who is acquainted with the facts of the case. In the instant case, the advocate who is appearing for the opponent has verified and signed Form TM-5 and it is needless to say that he is well acquainted with the facts of the case. Now it is relevant to refer Section 145 of the Act which reads hereunder:--
Agents:--Where, by or under this Act, any act, other than the making of an Affidavit, is required to be done before the Registrar by any person, the act may, subject to the rules made in this behalf, be done instead of by that person himself, by a person duly authorized in the prescribed manner, who
is-
(a) a legal practitioner, or
(b) a person registered in the prescribed manner as a trade marks agent, or
(c) a person in the sole and regular employment of the principal.
Reading of the above said provision makes it abundantly clear that legal practitioner is also authorized to file a notice of opposition. It is pertinent to note that in the said provision it is clearly and unambiguously stated that a legal practitioner is authorized to do any act which includes filing of notice of opposition under Form TM-5. We are unable to countenance the contention of the learned counsel for the appellant in respect of rule 25(1) which reads here under: "An application to the Registrar for the registration of a trade mark shall be signed by the applicant or his agent." The reading of the above said provision makes it very clear that an application to the Registrar for the registration of the Trade Mark shall be signed by the applicant or his agent and as such the said provision is specifically related to filing the application for the registration of the Trade Mark and the same has nothing to do with the filing of notice of opposition as per Form TM-5. But as far as provision under Section 145 of the Act is concerned, the said provision gives wider meaning for the authorized person and the same person is authorized to do any act which include even filing of a notice of opposition. The learned counsel for the respondent also rightly placed reliance on an earlier order of this bench by downloading the order dated 11th November, 2011 M/s. New Bharat Rice Mills, Punjab v. U.V. Enterprises, Australia"" wherein the Bench of the Board held "that the pleadings can fairly be signed by the authority or its pleader, if any." In view of the foregoing reasons, we are of the considered view that the appellant has not made out any ground warranting the interference of this Board to interfere in the impugned order passed by the Deputy Registrar. Accordingly, the appeal is dismissed as devoid of merits. No costs.