Zydus Wellness Limited vs Registrar Of Trade Marks And Altic Inc.

S. Usha, J

The main appeal is against the order passed by the Registrar of Trade Marks treating the application as abandoned by operation of Section 21(2) of the Act on 09.02.2011 under No. 704231 in class 29. The appellants filed the instant case with certain defects namely that there was mismatch of cause title and also that the impugned order was not filed along with the appeal. The Registry issued a defect notice and the appellants had therefore filed a miscellaneous petition to record the change of name and also a Form 5 filed to extend the time from 6/7/2011 to 11.07.2013 to rectify the delay with necessary fees.

The appellant state that the impugned application for registration of the trade marks Nurta Lite was filed by one Mr. Ashis Jayantibha Amin on 08.04.1996 under No. 704231 in Class 29. The said application was filed in the capacity as employee of Carnation Health Foods Ltd. Later Carnation Health Foods Ltd. was changed to Carnation Nutra-Analogue Foods Ltd. On 29.08.2006, Mr. Ashish Jayantibhai assigned the trademark Nra Lite to Carnation Nutra-Analogue Foods Ltd. In view of the scheme of arrangement which was approved by the Hon'ble High Court of Gujarat the appellant i.e. Zydus Wellness Ltd. is the successor in interest of Carnation Nutri-Analogue Foods Ltd. Fresh certificate of Incorporation consequent upon change of name was issued by the Assistant Registrar of Companies on 05.01.2009.

The Trade Marks Registry in the impugned order has mentioned proprietor alone and the name has not been given. This is the mistake of the Registry (Trade Marks) and not on the part of the appellants. The fault on account of the Trade Marks Registry shall not in any way affect the appellants interest. The defect may be condoned. Alternatively, the case may be deferred reserving liberty to approach the Trade Marks Registry for rectifying the error in the cause title in the impugned order and by condoning the delay. The delay also be condoned in rectifying the defects.

We heard Shri. Mihir Thakore, learned counsel for the appellant None represented on behalf of the respondent during the Circuit Bench Sitting held at Ahmedabad on 03.09.2013.

The learned counsel reiterated the facts of the case.

We have heard and considered the same.

The defect is that there is mismatch in the cause title in the impugned order and the appeal. On perusal of the records it is seen that there has been mistake on the part of the Trade Marks Registry which has not mentioned the correct name of the appellant in the impugned order instead only the word proprietor is given. The other documents as seen from the lower court records (Trade Marks Registry records) the name of Mr. Ashish Jayantibhai Amer is given. It is also seen that as per the scheme of arrangement there has been a change and necessary application has been filed to bring on record the change.

As we are in the preliminary stage of the appeal, we are not going in to the merits of the case. In the interest of justice, we do not think it proper to penalize the party for no fault of theirs. Accordingly, the miscellaneous petition is allowed and the Registry of this Board is directed to number the appeal if in order. The delay is also therefore condoned.