NALLI SAMBASIVAN Vs. DEPUTY REGISTRAR OF TRADE MARKS

JUDGEMENT

(1.) THESE two appeals are under Sec.l09(2) of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as "the Act"). The point involved in both the appeals is the same, in T.M.A.No.7 of 1993 the appellant is one Nalli Sambasivam and in T.M.A.No.8 of 1993 the appellant is one Nalli Duraisamy Saroja. There was Application No.472754 for registration of a particular trade mark and it was advertised in the Trade Marks Journal on- 16.7.1992. Each of the appellants filed notice of opposition on 23.11.1992. As per Sec.21 of the Act, three months" time is granted"from the date of the advertisement......of an application for registration for filing notice of opposition. No doubt, as per the very same Section, apart from the said three months, a further period not exceeding one month may also be granted by the Registrar under the Act on the application made to him in the prescribed manner. Since notice of opposition in the present case was filed only on 23.11.1992 and since according to the authority below, the abovesaid 4 months period expired on 16.11.1992 itself by order dated 30.6.1993 in the respective unnumbered intcr-locutory applications dated 28.4.1993 filed by each of the appellants, the notice of opposition in each of the two cases was held to be out of time and so the said applications were rejected. In each the said interlocutory applications dated 28.4.1993, it is prayed." Notice of opposition which is already lying with the Registrar of Trade Marks, Madras be taken on records and be proceeded with in accordance with the law". Aggrieved by the abovesaid order dated 30.6.1993, respective T.M.As. have been filed.

(2.) SO, the only question in these appeals is whether the abovesaid notice of opposition filed on 23.11.1992 is in time. Sec.21 only grants three months" from the date of advertisement " and a further period of one month as stated above. Accordingly , Rule 51 also says that Notice of opposition should be given in the prescribed form with three months from the date of the advertisement. Then Rule 51(2) of the Act says thus: "An application for an extension of the period within which a notice of opposition to the registration of a trade mark may be given, shall be made on Form TN44 accompanied by the prescribed fee. Such period of extension shall not exceed one month in the aggregate."

(3.) AS already indicated, Sec.21 refers the starting point for computing the abovesaid period, only as the" date of the advertisement " and the said expression" date of the advertisement " has been interpreted so far to mean the date of despatch of the abovesaid journal containing the advertisement. The relevant observations of the said Division Bench are as follows: