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2014 (2) TMI 165 - DELHI HIGH COURTAbandonment of trademark application - Failure to respond to objection raised over trademark registration application - Opportunity of hearing before abandoning application - Held that:- though the Act does not provide for treating the application to be “abandoned” on account of the applicant not responding to the objections or proposal of the Registrar in terms of sub-rule (1) of Rule 39, there is no inconsistency between the Act and the Rule since, the Act does not contain a prohibition against treating the application to be abandoned on such a ground and the Rules can always be used to supplement the provisions of the Act though they certainly cannot be in derogation of the specific provisions of the Act. Rule 39 (2) of the said Rules in my view serves a salutary purpose by requiring the applicant to respond promptly to the communication received from the Registrar in terms of sub-rule (1). Provisions of Section 101 of the Act read with Rule 106 of the Rules do enable the Registrar to extend the time prescribed in sub-rule (2), in appropriate cases. Since the Registrar may is competent to extend the time in appropriate cases, it would be difficult to say that the provisions of sub-rule (2) are mandatory. The basic principles of natural justice require that before the Registrar treats an application to be abandoned on account of failure of the applicant to respond to his objection or proposal sent under sub-rule (1) of Rule 39 he must necessarily give a show cause notice/opportunity of hearing to the applicant before treating the application to have been abandoned. In the cases where the Registry has treated the application as abandoned on account of failure of the applicant to produce evidence, the Registrar shall give a notice to the applicant requiring him to produce his evidence in support of the application for registration and in case no evidence is produced, he shall decide the application for registration on its merits, instead of treating the same to have been “abandoned”. If evidence is produced by the applicant in support of his application the Registrar shall proceed to adjudicate upon the application in accordance with law - Decided in favour of Petitioner.
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