Z.S. Negi, Vice-Chairman - (1.) THE applicant has, in the original rectification application No. 73/2006, filed this petition for review of the order of this Appellate Board whereby this Appellate Board has condoned the delay in filing of counter-statement by the respondent No. 1 and thereby taken the said counter-statement on record. THE review petition has not yet been numbered for determination of its maintainability under the Intellectual Property Appellate Board (Procedure) Rules, 2003 (hereinafter referred to as the Rules). We have on 21.9.2007 heard the arguments of Shri Amit Jamsandekar, counsel for the petitioner and Shri B. Chakaraborti, counsel for the respondent No. 1.
(2.) The learned Counsel for the petitioner contended that the respondent No. 1 has filed its counter-statement to the rectification application more than three months beyond the period provided under Rule 10 of the Rules and even considering the extension of one month's time, if any, as provided under Rule 93 of the Trade Marks Rules, 2002, the delay is more than two months. No provision is contained either in the Trade Marks Act or rules made thereunder which empowers granting extension of time for filing counter-statement exceeding one month in aggregate. By drawing our attention to this Appellate Board's order dated 11.12.2006 condoning the delay in filing the counter-statement and taking the same on record, the learned Counsel contended that the inordinate delay of two months in the present matter is not condonable. He submitted that the present review petition is maintainable as the impugned order even if passed by the Deputy Registrar, the same might, as per Rules 26 and 27 of the Rules, have been passed under the general superintendence of the Chairman of the Intellectual Property Appellate Board. He pointed out that Rule 23 of the Rules provide for making a petition for review of an order of the Appellate Board. Therefore, the review petition filed by the petitioner herein is maintainable under the Rules. After having heard the matter and gone through the record we agree with the argument put forth by the learned Counsel for the petitioner that the review petition is maintainable under the Rules, even though the order for condoning delay in filing the counter-statement by the respondent No. 1 was passed by the Deputy Registrar, the same should have been passed by him under the general superintendence of the Chairman of the Appellate Board. Hence, the order dated 11.12.2006 should be deemed to have been passed by the Appellate Board and review petition to such an order can be made under Rule 23 of the Rules.
(3.) ANOTHER question, which emerges from the petition, is whether the present review petition is sustainable in view of the fact that the same has been filed after the reply to the counter-statement has been filed by the petitioner/applicant. The extension of time was intimated to both the parties and the petitioner/applicant has received the same on 16.12.2007 i.e. more than a month before the filing of reply to the counter-statement. It is found that the petitioner/applicant has filed the reply to the counter-statement on 22.1.2007 and the review petition has been filed on 12.2.2007. The petitioner/applicant has acted upon the counter-statement of the respondent No. 1 by filing reply thereto which implies that the petitioner/applicant has accepted the counter-statement. The petitioner in the letter forwarding the reply had stated that the evidence is well within time and the same be taken on record and proceed further in the matter. Accordingly, the reply has been taken on record by the Appellate Board. After having acted upon the counter-statement and request made to take the reply on record and proceed further in the matter, the filing of present petition requesting this Appellate Board to refuse to take the counter-statement on record is an after thought action and such petition cannot treated to be filed bonafidely. In case, the counter-statement is refused to be taken on record, obviously the reply to counter-statement also does not survive. Both, the counter-statement as well as the reply thereto will be necessary for deciding the controversies between the parties.;