COLGATE PALMOLIVE COMPANY Vs. HINDUSTAN RAMMER

JUDGEMENT

(1.) This application has been moved seeking condonation of delay made in filing the appeal. The appeal has been brought under Section 109 of the Trade & Merchandise Marks Act, 1958 (hereinafter referred as 'the Act') against the order of the Deputy Registrar of Trade Marks dated October 25, 1991, which was received by the appellant on November 20, 1991, holding that the opposition filed by the petitioner to the registration application of the respondent of a particular label of the respondent under the Act stood abandoned. The appeal under Section 109 of the Act admittedly could be filed within 90 days of the impugned order. The appellant before filing the appeal had filed a review application under Section 97 (c) of the Act before the Deputy Registrar, Trade Marks. This review application was filed on November 27, 1991. After issuance of notice to the opposite party and after hearing both the parties, the review application was dismissed on March 9, 1992, which order was communicated to the appellant on March 17, 1992 and the appeal against the impugned order was filed on May 1, 1992.

(2.) It is the case of the appellant that the appellant had diligently and in a bonafide manner pursued the remedy of review and the period spent in pursuing the aforesaid remedy ought to be excluded in computing the period of limitation for filing the ap peal. It was further pleaded that the appellant is based in United States of America and had appointed Crawford Bayley & Co., Solicitors & Advocates, at Bombay for pursuing the trade mark cases on its behalf and after the impugned order dated October 25, 1991, was received, there took place delay in filing the appeal as it took time for getting necessary material and instructions from the appellant for filing the review petition and thereafter for filing the appeal.

(3.) The application seeking condonation of delay has been strongly contested by the respondent. I have heard the arguments in detail for deciding this application. Before I dealwith the various contentions raised before me, I may refer briefly to the background of the litigation. As far back as in May 12, 1959, the appellant had got registered Colgate Dentil Cream label showing colour red and white as shown in the representation attached to the petition Ex.B1 and in October 1976 modified the said label without altering the main substantive features, the said representation being Ex.B2. The mark was also amended in style of letters as Ex.B3 in 1984. The respondent is stated to have adopted an identical label mark for its dental cream 'COSMO', colour representation Ex.B4. The appellant filed a civil suit in 1978 in Bombay court in which interim injunction was sought restraining the respondent from using such deceptively similar label which infringes the registered label of the petitioner and interim injunction was obtained against the respondent on March 31, 1981 which was made absolute vide order dated April 11, 1985.