HINDUSTAN EMBROIDERY MILL Vs. HEMLA E MILL

JUDGEMENT

(1.) Trade & Merchandise Marks Rules, 1959, Rules 53 & 106. If evidence in support of opposition to registration is not led within 2 months of filing of counter-statement U/R. 53 or within extended period U/R 106, then opposition to registration would be deemed to have been abandoned. Registrar cannot give fresh period for leading evidence after the decision of litigation between parties. He has no power of Review. (Appellants applied for registration of certain Trade Marks. Respondents filed opposition to it. Appellants then filed counter-statements. Under Rule 53, respondents were required to lead evidence within 2 months. But they applied for stay of proceedings and also for extention of time which were rejected on 18.4.68. They appealed to High Court which were dismissed on 19.2.71. Then on 2.7.71, office of Registrar asked respondents to file evidence within 2 months. Appellants challenged this but without success. They then filed instant appeal). Judgment after giving above facts in detail, para 5 onwards is :-

(2.) On the facts of this case, the procedure up to the stage of filing the counter-statement is not in question. It is at the stage of leading evidence under Rule 53 that the difficulty arises. Instead of filing this evidence, the respondents filed an interlocutory petition on 31st August, 1967, praying for stay because of the pendency of the arbitration proceedings in Bombay. On 1st January, 1968, the opponents filed an application in Form TM-56. In order to understand this application, it is necessary to note that under Rule 106, the Registrar is entitled to extend time not being time expressly fixed by the Act or prescribed by Rules 81 or 81 (4). On 1st January, 1968, when the respondents applied for extention of time, the idea was that the proceedings should be postponed till after the arbitration had been decided in Bombay. The Assistant Registrar did not accept this contention, he refused to adjourn the hearing, and refused to extend the time, he also rejected the stay application filed by the respondents. This was by his decision dated 18th April, 1968, which was the subject-matter of appeals Nos. 75,76 and 77 of 1968 decided by myself in February, 1971. As that order was upheld by me in appeal on the ground that the appeal was incompetent, it would follow that extension of time had been refused.

(3.) After the appeal had been decided, the notice issued by the office of the Registrar of Trade Marks was to the effect that evidence could be filed within two months of the date of the notice. This means that virtually the previous order of the Registrar as well as the decision of this Court has been reversed by the Assistant Registrar. I may now again reproduce the entire notice. It reads :- (.,.)