Prabha Sridevan - (1.) THIS appeal is filed against the order treating the TM (6) filed on 8th March 2006 as time barred and the application in class 42 as deemed to have been abandoned. The appellant applied for the mark "DARJEELING LOUNGE" and it was advertised in the journal on 07.02.2005. Notice of opposition was filed by the respondents herein which was served on the applicant. The appellant filed their counter statement on 08.03.2006. The deputy Registrar held that since the notice of opposition was served on the applicants on 22.12.2005, the counter statement was filed beyond the statutory period. The impugned order also shows that notice was given vide letter late 01.08.2008, to show cause why this time -barred counter statement should be taken on record. But there was no reply, and hearing was fixed on 11.12.2008. It is seen from the impugned order that no one appeared on behalf of the applicants to show cause why there was a delay in filing the counter statement. The respondent was represented by a counsel. After hearing the respondent and the pleadings, the impugned order was passed.
(2.) THE learned counsel appearing for the appellant submitted that the impugned order is arbitrary and there is no application of mind. According to the learned counsel, in TM(6) it was specifically stated that the notice of opposition was received only on 10.01.2006. And if the time is calculated from 10th January, the counter statement was within time. The learned counsel submitted that the notice of opposition was sent on 22.12.2005 by the Trade Mark Registry. It means that at least two or three days would have elapsed from the date of despatch. And therefore, Impugned order stating that the notice was received on 22.12.2005 is clearly erroneous. The learned Counsel also submitted that since it was the time of Christmas and New Year, the postal delay cannot be ruled out. The learned Counsel cited several judgments to show how the issue must be decided in such cases. 1. "Hedges & Butler Limited v. Mohan Meakin Limited & Others" - - : 1999 PTC (19) 605 2. "J. Kohli & Anr. v. Ram Bhagwat & Ors." - : 2003 (27) PTC 161 (Del) 3. "N. Balakrishnan v. M. Krishnamurthy" - - : (1998) 7 SCC 123
(3.) "Tea Board, India v. ITC Limited" - -GA No. 3137 of 2010, CS No. 250 of 2010 4. The learned Counsel for the respondent submitted that the application should be rejected at the threshold since Darjeeling is a mark that belongs to the respondent. It is geographical indication. The learned Counsel also submitted that a person who comes to Court with delay must show that his application is in time.;