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Judgment
Prabaha 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 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 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 held, 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.
Thereafter, the appellant filed this review. He raised several grounds inter-alia that the respondent 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 entitlement, the claimed priority, the use all
shall be tested by the Registrar in accordance with law. This wills 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.