9911796707
TMI Blog2013 (2) TMI 631X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. A brief resume of facts relevant for adjudicating this petition may be summarised thus: 2.1 On November 6, 1985 the petitioner herein preferred an application for registration of trade mark "MAJA" label in the name of one "Shantikumar Ratilal" trading as "Shashi Industries" under No.445245 in Class-III in respect of "Agarbatti" (incense stick) claiming use of the said mark since the year 1985 itself under the provisions of the Act, 1958. 2.2 After due compliances and procedures involving multiple interactions, the application came to be advertised on October 01, 1992, in Trade Mark Journal ("TMJ") for the purpose of inviting objections under the provisions of Section 20 of the Act, 1958 from general public and owners of trade marks to registrability thereof. 2.3 On December 14, 1992 the respondent No.1 M/s. Maja Cosmetics filed a notice for opposition, as provided under the provision of Section 21(1) of the Act, 1958 on the prescribed form TM-5 on the ground that the respondent No.1 was the prior user of the mark "MAJA" since the year 1961 in relation to perfumery and cosmetics and since "Agarbatti" (incense stick) was one of the species of perfumery, the registration in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uary 16, 2000 the petitioner preferred another application afresh for registration of the same trade mark under No.903876 in Class III for expanded description of goods including perfumery and cosmetics. 2.15 The learned Single Judge of this Court vide order dated December 01, 2000 allowed the appeal of the petitioner on the ground that the RTM ought not to have taken a technical view in the matter and could have called for further evidence to substantiate the amendments. We deem it fit and proper to quote the relevant observations made by the learned Single Judge while disposing of Appeal No.9 of 1995 preferred under Section 109 of the Act. While allowing the appeal vide order dated December 01, 2000, the learned Single Judge observed as under: ".. .. ..The Assistant Registrar could have called upon the appellant to produce necessary materials to substantiate the amendment sought for. Section-22 of the Act empowers the Registrar to permit an amendment of the application and or to permit correction of any error in, or an amendment of, a notice of opposition or a counter-statement under section 21. Thus, a discretion could have been exercised in favour of the appellant especially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no mention of such partnership. 2.17 On July 26, 2002 a notice in the amendment application dated December 14, 2000 was issued to respondents and comments were forwarded on August 13, 2002. 2.18 On September 4, 2003 the matter was finally heard by the RTM again. 2.19 On September 6, 2003 the petitioner filed a letter before RTM relying upon the documents filed before this Court in Appeal No.9 of 1995. The respondent No.1 herein brought to the notice of the RTM vide letter dated October 01, 2003, and pointed out complete facts, non- compliance of the directions issued by this Court and requested the RTM to ignore the letter dated September 6, 2003. 2.20 Record reveals that the RTM vide order dated February 6, 2004 rejected the opposition of the respondents and allowed the registration as well as all the amendment applications without appreciating that no notice of earlier applications of the year 1995 was ever issued and also overlooking and ignoring the directions issued by the learned Single Judge of this Court vide order dated December 01, 2000. 2.21 Aggrieved by the order passed by the RTM, the respondent No.1 preferred an appeal before the Board to which the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the Hon'ble High Court. The directions were to decide the application on Form TM-16 for amending the name of the applicant as the mistake has crept in due to the mistake of the counsel and it was that the party should not be made to suffer for the mistake committed by the counsel. The Registrar has not dealt with that application i.e. has not heard that application instead gone ahead with another application and passed orders allowing the application. Even without going into the merits of the case, we thing it is a fit case for allowing the appeal. The first respondent, in our opinion, has not come to court with clean hands as in one application he seeks for amending the name and in another he seeks for amending the constitution when that was not pleaded before the High Court." 3. Aggrieved by the order passed by the Board, the petitioner has preferred this petition which though has been labelled as one under Articles 226 and 227 of the Constitution of India, but in substance it is under Article 227 of the Constitution of India. 4. We have heard learned counsel Mr.R.K. Shah appearing with the learned advocate Mr.Rajesh A. Acharya on behalf of the petitioner and the learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re this Court and the directions of this Court have not been complied with. The Board has also rightly observed that the Registrar has gone beyond the directions of this Court. The directions issued to decide the application on Form TM-16 for amending the name of the petitioner, as a mistake had crept in due to lapse on the part of the counsel, but the Registrar failed to deal with the said application and instead proceeded to decide another application and passed orders allowing the said application. 9. In the present case, the petitioner has miserably failed to substantiate its claim that application was erroneously or inadvertently filed in wrong name. The original file of the application is already lost and cannot be reconstructed as admittedly even the petitioner does not have true copies of papers and his counsel has destroyed his file. 10. The petitioner has failed to justify as to why the application for amendment was moved after orders were reserved in 1995 while the petitioner filed affidavit of evidence in correct name in January, 1994 itself. 11. The petitioner has further failed to justify as to why the partnership deed which came into existence on April 1, 1994 was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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