Raja Narain Masand vs Dinesh Kumar Jain

K.N. Basha, J

1 . The appeal arises out from the impugned order and decision dated 18th August, 2009 passed by the Senior Examiner of Trade Marks, Mumbai in respect of Opposition No. BOM - 206294 to Application No. 1317035 for the trade mark APPEL TOUCH i Class 25.

2 . This appeal is filed challenged the order passed by the Senior Examiner of the Trade Marks, Mumbai dated 18th August, 2009 rejecting the opposition filed by the appellant herein for the registration of the impugned trade mark under challenging in this appeal namely APPEL TOUCH.

3 . The appellant claimed in this matter that they are the prior adopter and user and they got the registration also as early as on 21.10.1994 in Class 25 for their trade mark TOUCH for the clothing and wearing apparent including in Class 25. The fact remains that the respondent impugned trade mark APPEL TOUCH also obtained in respect of Class 25 relating to similar type of goods namely readymade garments.

Mr. Vinod Bhagat, the learned counsel for the appellant would vehemently contend that the Senior Examiner of the Trade Marks has not at all considered the arguments and objections raised by the appellant for the registration of the impugned trade mark of the respondent. It is contended that in the impugned order without assigning any valid reason, the Senior Examiner simply thrown out the objection raised under Section 9(1), 11(1), (2) & (3), (10) and 18(1) of the Trade Marks Act.

5 . It is further contended that inspite of filing evidence under Rule 50 before 19.04.2007, the Examiner has wrongly held that the appellant has neither file the evidence under Rule 50 nor TM-56 within the stipulated time and the said finding is contrary to the facts. The learned counsel would further point out that the Controller has not at all consider even a single objection by rendering a finding on any reasons and straight away arrived at the conclusion of rejecting the objections raised by the appellant. It is contended that this bench is having a power to consider the matter on merits and dispose off the appeal itself.

6 . Per contra, the learned counsel for the respondent would contend that there is no illegality in the impugned order passed by the examiner. It is contended that the examiner has assigned valid reasons for rejecting the objections raised by the appellant. The learned counsel for the respondent would also submit that even on merits, the respondent is having good case and no ground made out for warranting interference in the impugned order.

7 . We have given our careful consideration to the rival contentions put forward by either side and perused the impugned order and other materials.

At the out set, we are constrain to state that each and every finding rendered by the examiner as per the impugned order is nothing but cryptic findings without even discussing the objections, contentions, merits and de-merits.

It is pertinent to note that in the impugned order itself, it is stated that the evidence under Rule 50 was to be filed on or before 19.04.2007 but the same was not filed by the appellants/opponents within a period of one month time and as such it was held by the examiner that the opposition can be abandoned by the operation of Rule 50(2). However, it is stated by the examiner that in order to give natural justice, he has heard the matter on merits. But the fact remains that the examiner has simply brush-aside the opposition filed along with the evidence within the stipulated time has asserted and categorically stated by the learned counsel for the appellant. It is not even stated by the examiner as on which date the appellant has filed evidence as contemplated under Rule 50 without mentioning the same he cannot give the above said finding.

Though it is stated by the examiner that he has to give natural justice. The perusal of the impugned order makes it crystal clear that the examiner not at all consider any objection or contentions of the applicant and he has simply rejected the objections in one word stating that he is rejecting by simply mentioning that the applicants mark is similar to that of the opponents. The examiner has not at all given the reasons as to why the mark is not similar. Inspite of all the other objections raised under Rule 11, (10) & 18(1) also the examiner has also given such finding without any discussion and without assigning any valid reasons. Though the learned counsel for both sides that the matter could be decided on merits. We are of the considered view that it is desirable to set-aside the impugned order and remand the matter for fresh consideration. More particularly, the examiner has not at all consider the evidence furnished by the appellant along with the opposition and as well as the evidence given by the respondent. Therefore, we have no hesitation to hold that the impugned order was passed in flagrant violation of the principles of natural justice.

In view of the aforesaid reasons, we are constrain to set-aside the impugned order dated 18.08.2009 and consequently, the registration of the impugned trade mark is also goes out of the register.

In view of the aforesaid reasons, the appeal is allowed and the impugned order is set-aside and the matter is remanded for fresh consideration on the basis of the evidence already filed by both sides. It is open to both sides to submit their contentions on the basis of the evidence filed by them earlier. It is made clear that the above said exercise shall be completed within a period of three months from the date of receipt of this order. It is further made clear before taking the matter for fresh consideration on the basis of the earlier filed without any additional evidence on both sides. Registrar of Trade Mark shall bring it on record of the register regarding the cancellation of the registration certificate relating to the impugned trade mark.