Raghbir Singh, Vice-chairman - (1.) THIS appeal was filed as TMA No. 4 of 2001 in the High Court of Judicature at Madras and has been transferred to this Board in terms of Section 100 of the Trade Mark Act, 1999 and has been numbered as TA No. 32/2003.
(2.) The trade mark bearing registration No. 285501B in class 29 for refined edible oils and with the condition that proprietors shall not claim exclusive right was registered on 22.01.1973. This related to a family concern and the trade mark 'SVS' was being used since 1969. In the meantime there had been certain disputes in the family and some arbitration was done and award of arbitrators dated 09.07.1984 was given effect from 14.07.1984. In terms of the award, the said trade mark was being used by respondents Nos. 2 to 4. The appellant made application Nos. 479368B and 479367B in class 29 for the registration of mark 'S' and 'SVS' respectively and the user in the said marks was claimed from July, 1987. The said marks were advertised before acceptance in trade marks journal No. 1148 dated 01.04.1997. Respondents No. 2 to 4 made a petition to the Registrar against the registration of trade mark Application No. 479367B bearing mark 'SVS' on 12.11.1999. The dispute involved in the present matter is about the registration of the mark No. 479367B in class 29 wherefor the Joint Registrar had put in an advertisement in the trade marks journal in terms of proviso to Sub-section (1) of Section 20 of the Trade and Merchandise Marks Act, 1958. Shri D. Rajkumar authorised agent on behalf of SVS Oil Mills filed a petition dated 12.11.99 under Section 19 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) before the Joint Registrar and the Joint Registrar accordingly gave a notice to the appellant. The appellant filed their reply on 16.01.2000 and the hearing was held on 16.01.2000. The moot question before the learned Joint Registrar to decide was the acceptability of the impugned mark 'SVS'. The learned Joint Registrar has gone into greater details of the facts leading to the split in the family and the consequent arbitration thereto and the finality of the award of arbitration, resulting into decree of the Court in that matter. It is not important for us to go into the greater details since the problem involved in the matter is as to the decision of the Joint Registrar in matter of action taken by him under Section 19 of the Act. The learned Joint Registrar went into greater details of his examination of the mark under Sections 12(1) and 12(3) of the Act and reached the conclusion that the impugned mark does not qualify for registration in terms of those sections. Resultantly, he ordered that in terms of Section 19 of the Act the prior notice issued in terms of proviso to Sub-section (1) of Section 20 be withdrawn.
(3.) THE appellant in his appeal has submitted that the action of the Joint Registrar in withdrawing the acceptance under Section 19 of the Act is illegal and without any jurisdiction. THE appellant claims that in case of an application advertised before acceptance as there had not been any acceptance of the application, there is no question of withdrawal of acceptance of the application and hence provisions of Section 19 of the Act are not attracted. THE complainants, having failed to file opposition within the prescribed time, have sought to achieve in an indirect manner what they could not do in direct manner. THE Joint Registrar ought to have held that once no opposition has been filed the application should proceed for registration. THE Joint Registrar failed to appreciate the provisions of Clause 26 of the Arbitration award which gave a right to the use of the mark.;