- (1.) THIS petition is for restoration of the M.P.No. 229/2011 in OA/15/2009. The above appeal was filed by the petitioner herein against the order passed by the Registrar in Opposition No.MAS -2262 filed by the appellant herein. The respondent had applied for the registration of the mark ICIN for medicinal and pharmaceutical preparations in Class 5. The appellant who is proprietor of the trade mark R -CIN opposed the registration under several grounds. The Registrar was pleased to hold that the opponents had not established their case and disallowed the opposition. The mark was ordered to be registered.
(2.) THE appeal was listed on 29.06.2011. On that date, the counsel for appellant appeared before us. But the notice sent to the respondent had returned unserved. We adjourned the matter to 12.07.2011 and the appellant was asked to ascertain the correct address of the respondent and to file it or to inform the Registry. The adjourned date of hearing was fixed in the presence of the Counsel for the appellant. When the matter came up on 12.07.2011, there was no appearance on behalf of either parties and we adjourned it to 12.09.2011. On 12.09.2011 again there was no representation from either side. The appeal was dismissed for default.
(3.) THE order copy had been communicated to the appellant by the Registry on 20.09.2011. This was received by them. They then filed M.P.No.229/2011 for restoring the appeal that was dismissed for default. On 09.12.2011, M.P.229/2011 was listed. The Counsel for the appellant had been intimated that it would be listed on that date. But no one appeared. The order sheet shows that we waited till 4.45 p.m., there was no representative on behalf of either side. So the MP for restoration was dismissed for default. Now the present M.P.No.1/2013 has been filed for restoring that M.P. 229/2011. The learned counsel for the petitioners submitted that it was because there was shifting of the office that the papers had been misplaced and there was no deliberate negligence on the part of the petitioner. He prayed that some indulgence should be shown in this regard. According to the learned counsel, there was no user of the mark by the respondent and their mark R -CIN had been used from 1978. The learned counsel submitted that the decision of the Hon'ble Supreme Court in "Cadila Health Care Limited Vs Cadila Pharmaceutical Ltd." - 2001 (PTC) SCC 541 would squarely apply to this case where both the marks relate to medicinal & pharmaceutical preparations.;