SHULTON INC Vs. BHAGWANT LAL CHAMAN LAL

JUDGEMENT

(1.) This is an application for condonation of delay in falling the appeal. The impugned order was passed on May 18,1993 by the Deputy Registrar of Trade Marks and the present appeal is filer on June 28,1994 after a delay of about eight months and twenty four days. The delay in filing the appeal is explained by the appellant in the following manner :

(2.) Sometime in the year 1993 the appellant company was acquired by the Proctor & Gamble Company from American Cyanamid Company. De penning and De penning were the attorneys of the appellant before its acquisition by the Proctor & Gamble company. The attorneys by their letter dated February 19.1994 informed American Cyanamid Company about the outcome of the opposition which it had filed to the application of the first respondent for registration of trade mark Old Spice in respect of shaving Brushes falling an class 21. A photostat copy of the letter the information about the result of the case was not intimated earlier to American Cyanamid Company due to mistake on the part of the attorneys. On receipt of the letter by the American Cyanamid Company a communication was sent by it to The Proctor & Gamble Company on March 5, 1994 transmitting the information about the order of the Deputy Registrar Trade Marks dated May 18,1993. On the request of the Proctor & Gamble Company. De Penning and De Penning on May 16, 1994 sort the file of the case to Remfry and Sagar which was received to the latter on May 20,1994. Thereafter the new attorneys sought the approval of the appellant for falling an appeal, which was received by them on May 25, 1994. The appeal was ready on May 30,1994 but the same could not be filed until June 26.1994 as the registry was closed for summer vacation. According to the appellant a request was made to the Joint Registrar of court for permitting it to file the appeal during vacation but the request was turned down as the joint Registrar was of the view that the matter was not an urgent one. This request was repeated before the Division bench but the same was declined. It as also pointed out by the appellant that on April 16.1992 the company wrote to De Penning and De Penning informing them about the acquisition of the Shulton Inc. by The Proctor & Gamble Company from American Cyanamid Company. The letter also sought information about the proceedings in the matter pending before the Deputy Registrar of Trade Marks. Again on April 2, 1993 a reminder was sent to the attorneys in this regard but no reply was given by them. It is in these circumstances that the appellant is claiming condonation of delay in filing the appeal.

(3.) Learned counsel for the first respondent opposing the application submitted that the appellant has not filed the affidavit of De Penning and De Penning Attorneys in support of its plea and therefore no credence should be placed on the averments of the appellant made in the application for seeking condonation of delay.