S. Jagadeesan, J. (Chairman) - (1.) THE appellant filed an application No. CAL 703 before the Assistant Registrar of Trade Marks, the second respondent herein, for rectification of the registered Trade Mark No.460870 B in class 12 of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as the Act), in the name of Ranjit Kumar Mukherjee and Sanghamitra Mukherjee, trading as Weldequip, the first respondent herein.
(2.) During the pendency of the rectification application before the Registrar, an interlocutory application was filed on behalf of one S.R.A. Brakes Private Limited, claiming to be the registered proprietor stating that the said Weldequip was a partnership and was taken over as ongoing concern by S.R.A. Brakes Private Limited and now it is recorded as the subsequent proprietor of the trade mark in question in the Register of Trade Marks. The said S.R.A. Brakes Private Limited further stated in the interlocutory application that the petitioner is not an aggrieved person under the provisions of Section 56 of the Trade and Merchandise Marks Act, 1958 and the applicant is not trading in any of the goods falling under class 12 of the classification. The applicant filed the detailed comments with regard to the interlocutory application. However, the Assistant Registrar of Trade Marks rejected the rectification application filed by the applicant herein on the ground that the application is pre-mature as the same was filed on 18.1.1995 when the mark was registered in the name of the first respondent on 20.4.1995. As against the same, the appellant filed an appeal TMA/2/1999, on the file of the High Court of Calcutta. By virtue of Section 100 of the Trade Marks Act, 1999, the said appeal was transferred to this Board and numbered as TA/302/2004/ TM/KOL (RECT). During our sitting at Kolkata, we heard the appeal on 6.12.2004. The applicant appeared in person. The first respondent was represented through counsel Ms. Sangita De Mukherjee.
(3.) THE appellant questioned the authority of the Assistant Registrar in numbering the rectification petition and calling upon the first respondent to file their reply, when the disputed trade mark was not registered on the date of the application. We find from the impugned order that the applicant filed the rectification petition on 18.1.1995. THE impugned trade mark was registered only on 20.4.1995, i.e., subsequent to the date of filing of the application. Hence, we asked the appellant to convince us on the fact that the application for rectification was filed subsequent to the registration of the impugned trade mark. THE applicant pleaded ignorance of the date of registration of the impugned trade mark. When the factual statement made in the impugned order was not disproved, we have to take it that the same is correct.;