Raghbir Singh, Vice-Chairman - (1.) THE appeal is against the order of the Assistant Registrar of Trade Marks dated 10.10.2003 wherein the application of the appellant was rejected on the ground that the mark cannot be registered for the reason that the mark applied for is deceptively similar. 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:- "THE trade mark applied for consists of words 'ALKA-Mints'. THE word 'ALKA' being common feminine personal name is neither adapted to distinguish nor capable of distinguishing the goods set out in the application. Further, the same is deceptively similar to the trade marks cited in the Examination Search Report as conflicting trade marks. THErefore, the objection raised under section 9 as well as section 12(1) of the Act are maintained and the application No. 759961 in Class 5 is hereby refused registration under section 18(4) of the Act."
(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 can not 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 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.;