S. Jagadeesan, Chairman - (1.) THE appellant has preferred this appeal against the order of the Deputy Registrar of Trade Marks dated 4.5.95. M/s. Plaza Battery Works, the second respondent herein, filed application No. 449535 for registration of the trade mark 'PLAZA' in class 9 on 11.2.86 in respect of battery and parts thereof. THE said application was advertised in the Trade Marks Journal No. 997 dated 16.12.90 at pages 1062-63. R.K. Cable Company, the appellant herein filed the notice of opposition on 5.3.91 to oppose the registration of the impugned mark on the ground that the appellants have been manufacturing and marketing electrical coil holder, electric bell push, electric switches, electric bell, connectors, chokes, insulated electric wires and insulated electric cables etc., and they adopted the trade mark 'PLAZA' in the year 1975 which is registered under No. 323032 as of 14.2.77 and that the impugned mark applied for is not registrable under Sections 9, 11(a), 12(1) and 18 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). THE second respondent filed the counter statement refuting all the material averments contained in the notice of opposition stating that the second respondent adopted the impugned trademark in the year 1981 honestly and since then they are using the same in respect of battery and parts thereof and that the second respondent's specification of goods is totally different from that of the appellant. Hence the mark is registrable under Section 12(3) of the Act. Appellants were intimated by the Registrar of Trade Marks to file their evidence within two months from the date of receipt of the counter statement of the second respondent and if not the opposition filed by the appellant will be deemed to have been abandoned. THE appellant filed TM-56 dated 30.11.92 for extension of time and thereafter they did not take any action in the matter. THE second respondent was informed by the Registrar through their letter dated 10.5.94 to file evidence under Rule 54 of the Rules framed under the Act. After completion of this formality the hearing was fixed on 25.1.95. Counsel appeared on behalf of the appellant and none represented the second respondent. Under the impugned order, the opposition of the appellant was rejected on the ground, they did not file any evidence within the time granted and as such the opposition is deemed to have been abandoned.
(2.) The Deputy Registrar of Trade Marks relied upon two judgments of learned single Judges of the High Court of Delhi in the case of Hindustan Embroidery Mills Pvt. Ltd. and Another v. Hemla Embroidery Mills Pvt. Ltd., C.M(M) No. 20/1977 and the other appeal CM(M) No. 59/95 wherein the Delhi High Court held that Rule 53(2) is mandatory and failure on the part of opponent to file evidence within the stipulated time, the opposition is deemed to have been abandoned and the Registrar has no power to extend the time. Against the said impugned order of the Deputy Registrar the appellant filed the appeal No. CM(M) No. 338/95 on the file of High Court of Delhi at New Delhi which stood transferred to this Board by virtue of Section 100 of the Trade Marks Act, 1999. Learned counsel for the appellant Mr. S.K.Bansal contended that the judgments of the learned single Judges in both the appeals CM(M) No. 20 of 77 as well as CM(M) No. 59/95 were reconsidered by a Full Bench of the same High Court in a batch of cases CM(M) 525/94, Hastimal Jain Trading as Oswal Industries v. Registrar of Trade Marks and another etc., 2000 PTC 24 (FB). In the said judgment reported in 2000 PTC 24, the Full Bench of the Delhi High Court held that the view taken by the learned single Judges that Rule 53(2) is mandatory had been set aside and they further held that Rule 53(2) is only directory and as such impugned order of the Registrar rejecting the opposition of the appellant therein on the ground that Rule 53(2) is mandatory cannot be sustained and the impugned order of the Registrar has to be set aside and the matter has to be remitted back to the Registrar for fresh disposal.
(3.) NONE appeared on behalf of the second respondent, the contesting party.;