S.Jagadeesan, J. (Chairman) - (1.) THE appellant has filed this appeal against the order of the Assistant Registrar of Trade Marks dated 19.8.1999 rejecting the application No. 494314 in class 12 of the appellant without even calling for the objections. THE appellant herein filed the application on 13.7.1988 for registration of trade mark 'FINEX' in respect of brake shoes and oil seals for motor land vehicles included in class 12. THE Assistant Registrar of Trade Marks fixed the hearing of the said application on 23.7.1988 on the ground that the said trade mark was already registered under No. 253919-B in respect of brake lining and clutch plates in favour of Shri Trilok Kumar, Shri Vijay Kumar and Shri Yogesh Kumar trading as M/s Brakes International with effect from 15.1.1986. Learned counsel raised the issue that the dissolution deed dated 31.10.1985 gives right to the appellant in respect of the mark applied for and also claim the use of the mark by producing evidence. Yet another plea put forth before the Registrar is that the goods in respect of which the impugned mark sought for is different from the goods of M/s Brakes International and as such the registration of the impugned mark does not in any way offend any of the provisions of the Trade and Merchandise Marks Act, 1958. THE Assistant Registrar found that in the earlier proceedings where TM-24 was filed by the partners of M/s Brakes International, a question was decided as to the proprietorship of the mark and it was held under the order dated 23.9.1997 that the appellant has no right in the trade mark. THE Assistant Registrar further proceeded on merits and found that the goods of the appellant and the goods of M/s Brakes International are same. Having come to the said conclusion, the application of the appellant was rejected without being advertised. Aggrieved by the same, the appellant preferred an appeal in CM(M) 704/99 on the file of the High Court of Delhi at New Delhi which has been transferred to this Board by virtue of section 100 of the Trade Marks Act, 1999 and numbered as TA/324/04.
(2.) Shri Mohan Vidhani learned counsel for the appellant contended that the dissolution deed dated 31.10.1985 does not give any right to the partners of M/s Brakes International and he also produced a copy of the dissolution deed before us in support of his contention. He further contended that even assuming that the said dissolution deed did not confer any right on the appellant, the goods for which the registration is being sought for are brake shoes and oil seals whereas the trade mark already registered, taken note of by the Assistant Registrar is only in respect of brake lining and clutch plates which are different goods. Hence the Assistant Registrar ought not to have rejected the application without even advertising the same especially when the advertisement is to invite opposition and the Assistant Registrar will have the benefit of hearing the other side in deciding the question of nature of goods as well as the rights of the parties under the deed. The procedure adopted by the Assistant Registrar in rejecting the application without even advertising is erroneous and unsustainable under law. We carefully considered the above contention of the learned counsel for the appellant. We also perused the copy of the dissolution deed produced by the appellant. We considered the reasoning of the Assistant Registrar to come to the conclusion that the goods brake lining and brake shoes are one and the same and in all the three aspects we have got our own doubt and hence we decided to remand the matter to the Trade Marks Registry for fresh disposal after making a advertisement and calling for opposition which may be of some assistance in deciding the issue. Since we have decided to remand the matter we thought that it is not fair on our part to make any observation one way or the other, as the same would ultimately influence the Assistant Registrar in deciding the issue by affecting the rights of any one of the parties. Consequently, we refrain ourselves from making any comments on merits.
(3.) THE impugned order of the Assistant Registrar is set aside and we direct the Assistant Registrar to advertise the application of the appellant and proceed further and dispose of the same in accordance with law. Considering that the application is of the year 1988, we also direct the Assistant Registrar or the Deputy Registrar as the case may be to give priority and dispose of the matter as expeditiously as possible.;