CHARKHA SOAP MILLS Vs. DARSHAN SOAP GACTORY

JUDGEMENT

(1.) This petition under 109(2) of the Trade and Merchandise Marks Act has been filed by the petitioner who was opponent in the matter of application filed by the respondent seeking for registration of trade mark "UPHAR" in its field. On 20.4.1975 Darshan Lal and Sohan Lal trading as Darshan Soap Factory filed an application being No. 3049828 for registration of a trade mark "UPHAR" word per se, in Class 3 in respect of a soap. As against the aforesaid application, the petitioner herein lodged a notice of opposition. After filing of the notice of opposition, a counter statement was filed by the respondent, who was the applicant before the Trade Mark Registry. The evidence in support of the application as also of the opposition were filed. The aforesaid application as also the opposition were taken up for consideration and by judgment and order dated 14.5.1980, the Assistant Registrar of Trade Marks dismissed the Opposition and allowed the application and ordered for registration of the trade mark as sought for by the respondent. Being aggrieved by the said order, the present petition has been preferred in this Court.

(2.) I have heard Mr. S.C. Chadha, counsel appearing for the petitioner.

(3.) Counsel for the petitioner submits that there is an error apparent on the face of the records in view of the fact that the Assistant Registrar has recorded that the opponents did not file Form TM-7 to signify their intention to attend the hearing. According to him such a conclusion is erroneous on the face of the records of the case and in support of his contention, he has drawn my attention to Form TM-7 filed by the counsel for the petitioner giving notice of the intention to attend the hearing of the case. He further submits that the Assistant Registrar of the Trade Mark while passing the impugned order allowing the application and rejecting the opposition mainly relied upon the affidavit of Shri Darshan Lal. He has drawn my attention to that portion of the order wherein the Assistant Registrar has discussed the contents of the affidavit filed by Shri Darshan Lal. Relying on the some he submits that there is apparent contradictions in the evidence filed by Shri Darshan Lal and in support of his contention he has drawn my attention to the affidavits filed by Shri Darshan Lal, which are on record.