K.N.BASHA,CHAIRMAN - (1.) IN this matter the petitioner has come forward with these two petitions seeking relief of revoking the order passed by the Board dated 28.01.2010. The Board passed a common order in both the matters viz. ORA/42 & 51/2008 as the respondents are one and the same. The petitioner in the first rectification application No. R.P.01/2011 is the licensee of the trade mark "AACHI" and the petitioner in the second rectification application No. R.P.2/2011 is the proprietor of the same "Aachi Masala Foods (P) Ltd.", a proprietary concern. M/s Gladys Daniel, the learned counsel appears for the petitioners in both the matters.
(2.) IT is to be stated that the first respondent in both the matters remained absent and has not appeared before the Board in spite of notices and even the copies of review petition served on them. The first respondent is not appearing either in person or through his representative. As a result, the Board heard the learned counsel for the petitioners and after perusing the records passed the above common order dated 28.01.2010 dismissing the rectification applications. Being aggrieved against the said order, the petitioner have come forward with the present review petitions.
(3.) MS . Gladys Daniel, learned counsel would contend that there is an error apparent on the face of the record in the order dated 28.01.2010 passed by the Board in as much as the Board has given the specific findings to the effect that the first respondent in both the matters for registered trade mark namely "AACHI" is prior to the registration of petitioners i.e. on 17.11.1999. It is contended that the said finding is wrong as it is specifically stated by the petitioner in the affidavit at the time of filing Rectification Applications in ORA 42 & 51/2008 indicated the specific dates of the registration more particularly in page 7' by giving a tabular column. As per Sl.No.13 namely "AACHI" word, the year of registration by the petitioner in Class 30 is on 29.01.1999 whereas the first respondent's registration was only made subsequently i.e. 17.11.1999 and it is proved by the petitioner that their trade mark "AACHI" word was registered prior to 1999 and it is pointed out by the learned counsel for the petitioner that the petitioner are the prior user and has gained fame and reputation in the business world "AACHI MASALA". It is contended that the petitioners are having enough documents to substantiate their claim that they are not only prior registrant of trade mark but they are also the prior user of the trade mark "AACHI". But they have not filed the said documents at the time of hearing of the main matter on the ground that the first respondent has not filed any counter statement against the specific averments made by the petitioner in their affidavits in ORAs. It is submitted that the petitioners are now producing documents to substantiate that they are the prior users. The learned counsel for the petitioner would further point out that at the time of disposal of ORAs, the first respondent were having time for renewal of their registration of trade mark and after the disposal of ORAs, the period for renewal and restoration had already lapsed. It is to be renewed within a period of 10 years or to be restored one year thereafter, as per the provisions of Section 25 of Trade Marks Act, 1999 read with Rules 63(1); 132 (b) and 138(3) of Trade Marks Rules, 2002. It is contended that the first respondent had abandoned the trade mark AACHI' and in view of the same, the order of the Board dated 28.01.2010 is liable to be set aside.;