S. Jagadeesan, Chairman - (1.) THE first respondent herein filed the application No. 516710 in Class 11 for registration of their Trade Mark "PHILLIPS" on 13.9.1989. THE applicant herein filed the notice of opposition on 4.9.1997. THE application of the first respondent was advertised in the Trade Marks Journal No. 1152, dated 1.6.1997, at page 505. THEreafter, the first respondent filed counter on 3.12.1999. THE Deputy Registrar of Trade Marks heard the matter in detail, disallowed the opposition of the petitioner herein and directed the registration of the Trade Mark of the first respondent by his order dated 14.6.2002. Since the appeal was not filed within the prescribed period of limitation before this Board, the petitioner filed this petition for condoning the delay of 1 year and 2 months, viz. 426 days.
(2.) Since this is a petition for condoning delay, it is unnecessary for us to traverse the merits of the facts. The only point for consideration by us is whether there is any sufficient cause for not preferring the appeal within the prescribed period. To find out this, it is necessary to look into the averments made in the application as to the sufficiency of cause for delay. The averments made by the petitioner in his petition are as follows: The order of the Deputy Registrar is dated 14.6.2002. This was received by the petitioner on 4.7.2002. The petitioner's counsel by their letter dated 4.7.2002, informed the petitioner about the dismissal of their opposition and advised them to file an appeal. Thereafter, various correspondences took place between the counsel and the petitioner. After some time, the petitioner failed to follow it up and consequently did not instruct the counsel to file the appeal. In May, 2003, the two persons in the attorney's firm who were dealing with the file of the petitioner had left the firm. Thereafter, a new person in the firm took charge of the file who wrote a letter on 14.11.2003, informing the petitioner that as no instructions were received for filing the appeal against the order of the Deputy Registrar, the file was being closed. The petitioner then realized that the instructions to file the appeal were not communicated to their Attorneys by oversight and in inadvertence. Due to the failure to follow up, the continuity was lost and the instructions could not be sent to file the appeal. On coming to know about the fact from the new counsel that no appeal was filed, steps were taken and the appeal was filed on 5.12.2003. The appeal ought to have been filed on or before 4.10.2002 and due to the bona fide mistake occurred as stated earlier, the appeal could not be filed within the prescribed time.
(3.) THE first respondent filed a reply opposing this petition. In the reply, the first respondent has denied generally all the averments made by the petitioner and further stated that the two persons in the Attorney's firm left the office only 11 months after the receipt of the impugned order. Further, it is stated that it is impossible to believe that for six months in the Attorney's office, the new person did not even review the pending file. THEy also stated that the petitioner as well as their counsel are guilty of culpable negligence and as such, there is no sufficient cause for condoning the inordinate delay.;