Raghbir Singh, Vice Chairman - (1.) THIS original appeal has been filed by the appellant against the decision of the Assistant Registrar of Trade Marks dated 5.7.2004 disposing of an interlocutory petition dated 5.7.2004 filed by the appellant in matter of their opposition being opposition No. DEL-T-1609 in matter of application No.518458B of second respondent.
(2.) Second respondent filed an application being application No.518458 for the registration of trade mark 'ROYAL TOUCH ' in class 2. The appellant gave a notice of opposition opposing the registration of the said mark, inter alia under section 9, 11(a), 11(e), 12(1) and 18(1) of the Trade and Merchandise Marks Act, 1958. The appellants could not file the affidavit in support of opposition and requested for extension of time in TM-56. The appellants received notice dated 18.5.2004 from the first respondent, the Assistant Registrar of Trade Marks fixing the date of hearing on 5.7.2004. The Assistant Registrar held the hearing without calling upon second respondent to file their evidence. Learned Assistant Registrar treated the notice of opposition given by the appellant as abandoned by virtue of provisions under Rule 50(2) of the Trade Marks Rules, 2002. He accepted the application No.518458 in class 2 to proceed for registration. The appellant has also submitted that the application had been filed in the name of M/s Royal Touch Paints which is not a person in terms of the provisions of Trade and Merchandise Marks Act, 1958. However, later on the application in TM-16 was filed whereby the names of the applicant were substituted and the same has been allowed by the Assistant Registrar by his order dated 5.7.2004. The appellant has submitted that first respondent has erred in disposing of the application without calling for the evidence of second respondent, the applicant and has worked against the purity of the Register. He has committed a grave error in not considering the principles of natural justice, public interest in passing his order. The order passed by first respondent is erroneous and against public interest.
(3.) THE matter was taken up for hearing during the sitting of the Board held at Delhi on 28.1.2005. Learned counsel Ms. Pratibha Singh appeared on behalf of the appellant and learned counsel Shri M.R. Bhalerao appeared on behalf of the second respondent.;