S. Jagadeesan, J. (Chairman) - (1.) THE appeal is directed against the order of the Assistant Registrar of Trade Marks, Ahmedabad, dated 9.9.1993, dismissing the Review Petition filed by the appellant.
(2.) The appellant filed an application No.328079 in class 3 of fourth schedule of the Rules framed under the Trade & Merchandise Marks Act, 1958, on 20.8.1977 for registration of a numerical trade mark '505' in respect of washing soaps in the State of Rajasthan. The first respondent filed the opposition stating that they are the registered proprietors of the numerical trade mark '501' and as such, the registration of the appellant's mark would cause confusion and deception. The Assistant Registrar of Trade Marks, considered the matter on merits and ultimately, by his order dated 9.11.1992, allowed the opposition No. AMD 430 (DEL 4367) of the first respondent and rejected the application of the appellant. Thereafter, the appellant filed a Review Petition in Form TM 27 on 7.12.1992, on the ground that the Assistant Registrar, while disposing the application for registration of the appellant did not consider the evidence adduced by the appellant in respect of their use at the pre advertisement stage. The said Review application was opposed by the first respondent and ultimately, under the impugned order dated 9.9.1993, the Assistant Registrar dismissed the Review application. Aggrieved by the same, the appellant filed the appeal on the file of the High Court of Gujarat at Ahmedabad under Article 226 of the Constitution of India which was numbered as Special Civil Application No.13399/1993. Later it was converted into an appeal, Appeal No.8/1994. After the Trade Marks Act, 1999, came into force in view of Section 100 of the said Act, the appeal stood transferred to this Board and numbered as TA/251/2004-TM (AMD). We have heard the appeal during our circuit sitting at Ahmedabad on 20.12.2004. Shri R.R. Shah appeared on behalf of the appellant and none appeared for the first respondent.
(3.) THE learned counsel for the appellant contended that along with the counter statement, the appellant filed the evidence relating to the pre advertisement stage. When the appeal was heard, at the time of hearing, the same was brought to the notice of the Assistant Registrar. Ultimately, it was found that the records were missing with the Registry and ultimately, the appellant was given time to produce the evidence relating to the pre advertisement stage. Unfortunately, the appellant could not comply with the same within the stipulated time and ultimately the Assistant Registrar disposed of the application for registration of the appellant on merits. This necessitated the appellant to file the present review application along with the evidence. When the appellant was bonafidely unable to comply with the direction of the second respondent herein, the review application filed along with the additional evidence ought to have been considered on merits by taking the evidence on record. On the other hand, the Assistant Registrar had disposed of the review application on technical ground that the appellant failed to utilize the opportunity given to them to produce the evidence relating to the pre advertisement stage immediately after the arguments were over and the Assistant Registrar totally failed to consider the explanation of the appellant for their inability to produce the evidence within the stipulated time after the arguments were over and as such, the order in the review application may be set aside with a direction to the Assistant Registrar to take the evidence on record and consider the review application on merits.;