S. Jagadeesan, J. (Chairman) - (1.) THE petitioner has preferred this appeal against the order of the Assistant Registrar of Trade Marks, New Delhi dated 23.7.2004 wherein the opposition of the first respondent was allowed and the application of the petitioner for registration was rejected.
(2.) The petition is to condone the delay of 28 days for filing the appeal. The petitioner has stated that the order of the Assistant Registrar of Trade Marks, New Delhi was communicated to the counsel on 17.8.2004 and the same was forwarded to the petitioner by their counsel. The petitioner has misplaced the impugned order of the Assistant Registrar and totally forgot about the filing of appeal till they were reminded by their counsel. Immediately on the reminder, the petitioner gave instructions to their counsel to prefer the appeal and the appeal was filed before this Board on 13.12.2004. The period of limitation prescribed under Section 91(1) of the Trade Marks Act, 1999, is three months from the date of communication of the order. Hence the appeal ought to have been filed on or before 16.11.2004. The delay is due to misplacement of the impugned order and as such, the delay is neither wilful nor wanton. The delay being a bonafide one, unless the delay is condoned, the petitioner will be prejudiced. Hence the delay has to be condoned. The learned counsel for the petitioner Shri Ajay Amitabh Suman argued the matter reiterating the averments made in support of the petition for condoning the delay. Ms. Monika Vij, the learned counsel for the first respondent, by referring to some of the judgements, vehemently opposed the application for condoning the delay contending that the petitioner has not explained each day's delay and as such, the petition is liable to be dismissed. Further, the learned counsel for the first respondent contented that the whole-sale reason given by the petitioner cannot be accepted and it is for the petitioner to instruct the counsel for filing the appeal, immediately on receipt of the impugned order. The misplacement of the impugned order itself establishes the grave negligence on the part of the petitioner and as such, the petitioner failed to establish any sufficient cause for condoning the delay.
(3.) WE carefully considered the above contentions of both the counsels. It is unnecessary for us to refer to the judgements cited by the learned counsel for the first respondent for the simple reason that the factum of the availability of sufficient cause has to be considered on the facts and circumstances of each case and the precedence cannot be followed in a blanket manner.;