Raghbir Singh, Vice Chairman - (1.) THE appeal is against the order of the Assistant Registrar of Trade Marks dated 26.8.2003 wherein the application of the appellant was rejected. THE grievance of the appellant is that the Assistant Registrar did not give any reason to arrive at the conclusion that the mark is not registrable except a cryptic statement in the order which is as follows:- "Subject to conversion of application as one for registration in part 'B' of the Register by filing a request on form TM-16, subject to association with application nos.755025 & 755031, subject to disclaimer of letters 'B' & 'G' in combination except as substantially shown on the label and subject to disclaimer of application no.738672 as agreed to and subject to deleting clear letters 'B G' from the label and filing fresh labels of the mark accordingly, the application will be advertised before acceptance for registration in the Trade Marks Journal.".
(2.) We have perused the Rules with regard to the powers of the Assistant Registrar to pass such orders. In fact, Rule 40 of the rules framed under the Trade Marks Act, 1999 which deals with "Decision of Registrar" empowers the Registrar to communicate his observations in writing to the applicant and if the applicant intends to appeal from such decision, he may within one month from the date of such communication apply on Form TM 15 to the Registrar requiring him to state in writing the grounds of, and the materials used by him in arriving at, his decision. Admittedly, the appellant did not choose to apply on Form TM 15 and approached this Board by way of appeal. The learned counsel for the appellant, on our query in respect of non compliance of the procedure contemplated under the Act, replied that the Assistant Registrar does not comply with the requests of the applicants on Form TM 15 within any reasonable time and if such request is made, the matter is kept pending before the concerned authority for months together and this would cause further delay in the process of registration. Hence, to avoid the delay, the appellant has no other option except to approach the appellate authority.
(3.) WE have carefully considered the above submission of the learned counsel for the appellant. When the statute prescribes the procedure, we are of the view that the said procedure must be followed and it cannot be given a go bye for the convenience of the parties. Though we agree with the learned counsel for the appellant that the order is a cryptic one, as already pointed out, Rule 40 of the Rules framed under the said Act envisages such circumstances. Hence, it is for the appellant to make a request on Form TM 15 and the Assistant Registrar of Trade Marks has to comply with such a request.;