JAGTJIT INDUSTRIES LIMITED Vs. REGISTRAROF TRADE MARKS

JUDGEMENT

(1.) With the consent of parties the matter has been heard and is being disposed of Finally.

(2.) The petitioner had filed an application for registration of the trade mark "COMPLEAT" before the Registrar of Trade Marks. On this application having been advertised, the respondent filed opposition to the registration of the said mark. Under Rule 53 of the Rules framed under the Trade and Merchandise Marks Act, evidence in support of opposition is required to be filed within two months. The respondent, it appears, had filed affidavit by way of evidence on 5/11/1993 which was well within the period of two months, but the same was not executed in accordance with rules and was only on a plain paper. On being informed that the affidavit cannot be taken on record being in contravention'of the. Rules, the petitioner was called upon . to file their evidence under Rule 54 vide office letter dated 6/12/1993. However, in the meantime alongwith letter dated 21/12/1993, the respon- dent filed a duly executed affidavit under Rule 53 with a prayer that the same be taken on record. Since the matter had already proceeded to Rule 54, the same was not taken on record. Thereafter an application was filed by the respondent that the affidavit filed vide letter dated 21/12/1993 be taken on record on the ground that the earlier affidavit though filed in time was inadvertently on a plain paper and there was thus a bona fide error on the part of the respondent in filing the affidavit.

(3.) The Assistant Registrar of Trade Marks vide the impugned order held that the respondents were all along intending to file their evidence under Rule 53 but since the affidavit was not duly executed, it was better to decide the case on merits by giving opportunity to the parties to lead their evidence in support of their respective case. It was also held by the Assistant Registrar that a mere technical flaw cannot and should not be used as a ground to shut the evidence which had already been filed in the case.