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2016 (1) TMI 759 - SC - Indian LawsRectification of register where trademark 'BLENDERS PRIDE' was registered by inadvertence/error - time for filing notice of opposition within the three month - power of the Registrar to correct his own mistakes under Section 57(4) of the Act - interpretation of Section 125 - Held that:- A perusal of this letter shows that the notice of opposition was taken on record. This could not have been done unless time had been extended by one month, as the said notice of opposition was filed only on 19.1.2004, i.e. within the 30 days period after three months were over on 6.1.2004. Though Section 131 of the Act refers to the Registrar's satisfaction and refers to conditions which he may think fit to impose, it is clear that he need not pass a separate order in every case if he wishes to extend the time. It is true that time to file a notice of opposition is to be done within the time that is expressly provided in Section 21(1) and that Section 131 of the Act would not therefore apply. However, Section 131 is a pointer to the fact that the extension of time by the Registrar is a ministerial act for which no hearing is required. It is thus clear that time has been extended by the Registrar, as is evidenced by the letter dated 16.2.2004. Therefore, it is clear that any registration certificate granted prior to the 30 days extended period from 6.1.2004 would be violative of Section 23(1) of the Act. In this view of the matter, the Appellate Board and the Division Bench are clearly right in declaring that the registration certificate, having been issued on 13.1.2004, would be violative of Section 23(1)(a), and the register would have to be rectified by deleting the said trademark therefrom. In paragraph 10 of the plaint, there is a specific averment by the plaintiffs that upon necessary inquiries being made, the plaintiffs have learnt that the defendants have not even applied for registration of the trademark 'BLENDERS PRIDE' in their favour. It may also be noticed that the suit is both a suit for infringement as well as passing off, and it is significant that Austin Nichols has not been made a party defendant to the said suit. Also, the very issue as to validity of the registration of the trademark concerned has to be determined in the application for rectification of the register, which would obviously bind only the parties to the suit and nobody else. For these reasons, the application for rectification, not having been made by any of the party defendants in the said suit for infringement and passing off, Section 125(1) would have no application. Division Bench of the High Court is also correct in reasoning that Section 125(1) would only apply to applications for rectification of the register, and not to the exercise of suo motu powers of the Registrar under Section 57(4). The reason is not hard to seek. If the Registrar is barred from undertaking a suo motu exercise under Section 57(4) to maintain the purity of the register, there could conceivably be cases where a defendant, after raising the plea of invalidity in a suit for infringement, chooses not to proceed with the filing of a rectification petition before the Appellate Board - The Registrar's power to maintain the purity of the register of trademarks would still remain intact even in such cases, as has been held by the judgment in Hardie's case. The Division Bench judgment requires no interference. - Decided against the appellants.
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