MERCK KGA A. Vs. ALPHARMA INC.

JUDGEMENT

(1.) THIS order will dispose of a proposed opposition dated 2nd May, 2006 filed by M/s. Alpharma Inc., a company organized and incorporated under the laws of U.S.A., at One Executive Drive, Fort Lane, New Jersey 07024, U.S.A. (hereinafter referred to as "the Opponents") in the above matter. The facts are briefly that the Applicants' trade mark inter alia "ALPHAPHARM" filed under Application No. 1353874 in class 42 was advertised in the Trade Marks Journal No. 1333 Supplementary (1) dated 15th August, 2005, which was made available to the public on 3rd January, 2006. A notice of opposition along with a request on Form TM -44 for extension of time by one month for filing the notice of opposition was filed to the aforesaid application on 2nd May, 2006 under Section 21(1) of the Act. The question now only arises as to whether the request on Form TM -44 along with the notice of opposition filed by the above named Opponents on 2nd May, 2006 is within the statutory period or not.

(2.) PURSUANT to this office Letter No. TOP/24999 dated 4th July, 2006 M/s. Sea Links Registered Patent & Trade Mark Attorneys, New Delhi instructed by the above named Opponents submitted a detailed reply under their letter dated 7th July, 2006 stating that the maximum period of four months prescribed by the provisions of Sub -section (1) of Section 21 of the Act read with Sub -rule (1) ofR.47 of Trade Marks, 2002 is well within the prescribed time and notice of opposition along with a request on Form TM -44 filed on 2nd May, 2006 may be taken on record and the matter be proceeded within accordance with the law.

(3.) MR . S.K. Bansal, Advocate, the Learned Counsel for the Opponents submitted that the Trade Mark Journals have nowadays been made available to the public erratically. It is only in November and December, 2003 that the Registrar certified the days on which the Journals were made available to the public and very often the notification would appear on the notice board up to one month after their date of issue, which meant that there was uncertainty with regard to the deadlines. As a consequence of the late receipt of Journals, the whole process of filing the opposition was delayed. Obviously, there was a considerable delay in filing the request on Form TM -44 and its notice of opposition to the aforesaid application. The Counsel for the Opponents in this connection relied upon the case of Pavunny Ouseph v. Registrar of Trade Marks AIR (1952) Travancore, 77 in support of his arguments and asserted that the period should be counted from the date of despatch of journal containing such advertisement to the subscribers.