Decided on March 09,2006



S. Jagadeesan, Chairman - (1.) THE appellant preferred this appeal against the order of the Assistant Registrar of Trade Marks dated 16.10.1996 dismissing the opposition of the appellant DEL/8676 and allowing the Application No. 507626 in class 9 of Schedule I of the Trade and Merchandise Marks Act, 1958 (hereinafter referred as the said Act) for registration of the trade mark "PARKO" in respect of electrical wires and cables.
(2.) The 1st respondent herein Shri Jagadish Chand Gupta trading as M/s Bentex Cable Industries applied for registration of the Mark "PARKO" under application No. 507626 in respect of electric wires and cables in class 9. The said application was accepted and advertised in the Trade Marks Journal No. 1073 dated 16.02.1994 at page 1328. The appellant herein filed the opposition on the ground that the impugned trade mark is violative of Sections 9, 11(a), 11(e), 12(1) and 18(1) of the said Act. The matter was set down for hearing on 02.04.1996. On the said day the counsel for the respondent appeared. There was no representation on behalf of the appellant. Under the impugned order the Assistant Registrar of Trade Marks accepted the contentions of the learned Counsel of the respondent and allowed their application for registration. Aggrieved by the same the appellant has filed the Appeal in CM(M) 41/97/225/97 on the file of the High Court of Delhi, which stood transferred to this Appellate Board by virtue of Section 100 of the Trade Marks Act, 1999 and numbered as TA/132/2003/TM/DEL. The case was listed for hearing on 16.02.2006 in the sitting of the Board held at New Delhi. Learned Counsel Shri Shailen Bhatia appeared on behalf of the appellant and learned Counsel Shri V.P. Ghiraiya appeared on behalf of the first respondent.
(3.) THE learned Counsel for the appellant contended that after the formalities were over, the matter was listed for hearing on 02.04.1996. THE appellant's Counsel sent a letter seeking adjournment and the said letter was before the Assistant Registrar for consideration. Without considering the request for adjournment the Assistant Registrar disposal of the matter 'ex-parte'. THE appellant also filed an application for review and doubting the jurisdiction of the Assistant Registrar for review, he filed an appeal. Subsequently, the review petition was withdrawn. THE learned Judge of the High Court of Delhi directed the counsel for the appellant appeared before the Registry of the Trade Marks, to file a fresh affidavit with regard to his illness. THE learned Counsel also filed the affidavit and to the said affidavit the respondent has not filed any objection. Hence, considering the nature of the case and in the interest of the justice, it is necessary that the appellant must be given an opportunity to put forth his case before the Assistant Registrar by setting aside the ex-parte order.;

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