VIRENDRA SETHI Vs. KUNDAS DAS

JUDGEMENT

(1.) CM No. 10/02 Notice. Mr. S.K. Aggarwal, Advocate, accepts notice on behalf of the respondents. The application stands disposed of accordingly. CM (M) No. 30/02 & CM No. 63/02 Heard the learned counsel for the parties. This petition is directed against the order of the Assistant Registrar of Trade Marks dated 25th October, 2001, by which an interlocutory application dated 17th July, 2001 seeking amendment of opposition in Form TM16 has been rejected. The petitioner herein has filed an opposition to the registration of a trade mark 'CHAAPAT' applied for by the respondent herein on the premises that the same is identical to the trade mark 'CHATAPAT' of the petitioner. However, subsequent to the filing of the said opposition, the petitioner discovered that the publication of the advertisement and trade mark 'CHAAPAT' in the Journal was not proper as besides the work "CHAAPAT" there was some other word "PRIKAS" which was not clearly visible in the advertisement so published in the Trade Marks Journal and, therefore, he applied to the Registrar of Trade Marks for amendment of his opposition so as to incorporate the word "PRIKAS" also with "CHAAPAT" as the basis for opposition of the said trade mark. The said application has been disposed of and the prayer of the petitioner has been declined mainly on the premise that the Journal was duly published and no one had pointed out any such defect in the advertisement so published and also found that the word "PRIKAS" was discernable and visible in the publication. Learned counsel for the petitioner has assailed the impugned order on the ground that the Assistant Registrar of trade mark was not justified in rejecting the application on the premise that the journal has its circulation amongst the literate persons which include inter-alia Lawyers and Agents and nobody came forward with any objection with regard to improper publication of the said advertisement. There is merit in this contention as in the opinion of this Court also this was an irrelevant consideration for rejecting the prayer of the petitioner, because it may not always be of any interest to any Lawyers or Agents to raise such objection and only the concerned or affected persons can at best be expected to raise such an objection. In any case it is the duty and responsibility of the concerned authorities under the Trade & Merchandise Marks Act to ensure that the advertisement is published properly and nothing is left vague or uncertain. A copy of the journal No. 1203 dated 21st July, 2001 has been produced and a perusal of the same, this Court is of the view that the word "PRIKAS" is not readily and properly visible and discernable in the said advertisement. This being the position this Court is of the view that the petitioner was within his right to seek amendment of his opposition and the Registrar ought to have allowed the prayer of the petitioner for the amendment of the opposition by incorporating the word "PRIKAS" and consequential amendments as well. Having considered the matter in its entirety, this Court holds that the impugned order dated 25th October, 2001, is not justified and cannot be sustained. The petition is allowed and the impugned order dated 25th October, 2001 is hereby set aside and the interlocutory application of the petitioner dated 7th July, 2001 is hereby allowed and the petitioner is allowed to incorporate paragraphs 5A and 5B as they appear in Form TM16. I order accordingly. The petition stand disposed of accordingly.