GOPAL KRISHAN Vs. MEX SWITCHGAR PRIVATE LIMITED

JUDGEMENT

(1.) This is an appeal filed under Section 109(5) of the Trade and Merchandise Marks Act, 1958 (hereinafter called 'the said Act'). Wherein the appellant has challenged the correctness of the Order of a Single Judge of this Court dated November 4, 1991 who in turn has upheld the decision of the Deputy Registrar of the Trade Marks withdrawing the acceptance of the Application which has been filed by the appellant.

(2.) Briefly stated the facts are that on April 19, 1982 the appellant filed before the Registrar of Trade Marks an application for registration of his mark. The application was in respect of electric switchgears and other electrical goods. The application was filed for registration under Class 11 of the 4th Schedule to the Trade and Merchandise Marks Rules, 1959 (hereinafter called as 'the Rules'). In the application the user was claimed of the mark 'MAX STANDARD' w.e.f. January 1, 1982.

(3.) It appears that after the scrutiny has been conducted in accordance with provisions of Rule 38 of the said Rules the said application was accepted. Thereafter on January 24, 1986 the appellant has filed an application seeking amendment of the earlier application dated 19th April, 1982. The said amendment which was sought was that the description of goods for which the registration was sought was confined to Electrical Switchgears. In addition thereto the amendment application sought to change the Class 11 to 9. The date of user was also proposed to be changed from January 1, 1982 to January 1, 1979. The next relevant circumstance is that the amended application for registration filed by the appellant was advertised in the Trade Marks Journal on November, 1, 1988 and to that application opposition was filed by the Respondent herein. On August 23, 1989 the appellant herein filed a reply to the Opposition. It is alleged by the appellant that by ignoring this reply an Order was passed on October 16, 1989 by Trade Mark authority to the effect that the application for registration had been abandoned by the appellant herein. Soon thereafter on October, 23, 1989 an application in TM-57 for the review of the Order dated 16th October, 1989 was filed by the appellant.