S. Usha - (1.) BOTH the appeals are preferred against the order dated 14.03.2012 passed by the Assistant Registrar of Trade Marks, rejecting the notice of opposition as time barred and allowing the application No. 803692 in class 5 to proceed to registration. The 2nd respondent herein filed an application for registration of the trade mark "PROFOL" under No. 803692 in Class 5 in respect of pharmaceutical and medical preparations on 26/05/1998 claiming user since 01/04/1986. The said application was advertised in Trade Marks Journal No. 1341 dated 01/04/2006 and the same was made available to the public on 07/07/2006. The appellant filed the notice of opposition on 31/10/2006. On 09/07/2007, the Assistant Registrar/the 1st respondent herein issued a letter as to show cause why the notice of opposition should not be refused as it was time barred. On 23/07/2007, the appellant had stated that the notice of opposition had been filed within 4 months time. Along with the reply they had also filed a request of extension on Form TM -44. The request on Form TM -44 alongwith the demand draft were returned to the appellant by the 1st respondent.
(2.) ON 20/08/2007, the appellant had written a letter to the 1st respondent stating that the Trade Marks Journal was received by the appellant only after one month from the date on which it was made available to the public. The 1st respondent i.e. the Assistant Registrar heard the appellants and passed the impugned order refusing to take on record the notice of opposition as it was time barred. The appellants therefore filed this instant appeal. The 2nd respondent filed their counter statement denying all the averments made in the appeal grounds. The respondents stated that the appeal deserves to be dismissed for wrong statement. The request on Form TM -44 was filed after the 1st respondent had issued a letter. In fact the impugned order was passed after hearing the appellants. The 2nd respondent submitted that as per the law, when the statute provides for a time, it cannot be extended. The Act provides for three months and the aggregate an extension of one month thereafter. The appeal is therefore not maintainable as no valid reason given for the delay and deserves to be dismissed.
(3.) WE heard Shri. Amit Jamsandegar, Learned Counsel for the appellant and Shri. Akhil Sibil, Learned Counsel for the respondent during the Circuit Bench Sitting held at Ahmedabad on 7th January, 2013.;