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TMI Blog2013 (10) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... have removed the said marks from the register on 12.04.2010. On 07.10.2010, the petitioner made an application for restoration of the said trademark on the register and renewal thereof. According to the petitioner, the respondent has not entertained this application. Consequently, this petition has been preferred. 4. The submission of learned counsel for the petitioner is that the respondent did not follow the prescribed procedure before removing the said trademark from the register of trademarks. Reference is made to section 25 of the Trade and Merchandise Marks Act, 1958, (The Act) which was applicable at the relevant time. Section 25 of this Act reads as follows: "25. Duration, renewal and restoration of registration (1) The registration of a trade mark shall be for a period of seven years, but may be, renewed from time to time in accordance with the provisions of this section. (2) The Registrar shall, on application made by the registered proprietor of a trade mark in the prescribed manner and within the prescribed period and subject to payment of the prescribed fee, renew the registration of the trade mark for a period of seven years from the date of expiration of the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the register. 68. Advertisement of removal of trade mark from the register. If at the expiration of the last registration of a trade mark the renewal fee has not been paid the Registrar may remove the trade mark from the register and advertise the fact forthwith in the journal. 69. Registration and renewal of registration. An application for the restoration of a trade mark to the register and renewal of its registration under sub-section (4) of section 25, shall be made on form TM - 13, within one year from the expiration of the last registration of the trade mark accompanied by the prescribed fee". (Emphasis supplied) 6. Learned counsel for the petitioner submits that under section 25(3) of the aforesaid Act, it was obligatory on the registrar to send notice in the prescribed manner to the registered proprietor of the date of expiration and conditions as to payment of fee and otherwise, upon which a renewal of registration may be obtained. Only after such a notice had been issued under section 25(3) read with rule 67, as extracted above, upon the failure of the registered proprietor to seek renewal of the registered trademark, could the registrar proceed to remove the mark f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has changed. According to the petitioner, a fresh partnership deed was executed between the new partners, namely Shri Ashok Kumar Malhotra and Ms. Satish Bala Malhotra. Subsequently, on the demise of Sh. Ashok Kumar Malhotra, the constitution of the petitioner was again changed and a fresh partnership deed was executed between Ms. Satish Bala Malhotra, Ms. Monica Malhotra Khandhari and Ms. Sonica Malhotra on 30.12.2009. Mr. Datta submits that it is not clear whether the title in the trademark in question vests in the petitioner or not. 13. In his rejoinder, learned counsel submits that the petitioner has given an explanation with regard to the vesting of the trademark in the letter dated 07.10.2010 placed on record. 14. Having heard learned counsel for the parties and examined the aforesaid provisions of the Trade and Merchandise Marks Act, 1958 and the Rules framed thereunder, namely, the Trade and Merchandise Rules, 1959, I am inclined to allow the present petition. Analysis of Section 25 of the aforesaid Act shows that a trade mark registered under the said Act may be renewed from time to time for periods of seven years each on making of an application and payment of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. Removal of the registered mark from the register without complying with the mandatory requirements of Section 25(3) of the aforesaid Act read with Rule 67 of the aforesaid Rules would itself be laconic and illegal. 17. Reliance placed by Mr. Dutta on Section 25(4) and Rule 69 as aforesaid to contend that the petitioner's application to seek restoration of the mark on the register and for its renewal could have been made only within the period of one year from the expiration of the last registration of the trade mark, and not thereafter, cannot be accepted because, in this case, the removal of the mark from the register ab initio was not in terms of Section 25(3) read with Rules 67 and 68 as aforesaid. 18. The scheme contained in Section 25 read with Rules 66 and 67 as aforesaid, is that in case the application for renewal of the registration is not made before the expiration of the last registration, the registration of the trade mark would lapse. However that, by itself, would not lead to removal of the mark from the register. That, by itself, would not even entitle the Registrar to remove the mark from the Register. For removing the mark from the register, the procedure pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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