Z.S. Negi, Vice-Chairman - (1.) THIS appeal under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) is directed against the order dated 25.11.2002 of the Assistant Registrar of Trade Marks, Mumbai.
(2.) The brief facts as gathered from the appeal records are that Shri Prashant Sharma in the capacity of a partner of the B.E.W. AUTO PARTS filed application No. 740382 for registration of the trade mark BEW in class-12, in respect of Hubs, break drums for trucks, buses, tractor, trailor, animal driving vehicles, trollies, clutch housings for motor land vehicles, chasis spare parts, helper bracket and parts and fittings for motor land vehicles. The application was advertised before acceptance in the Trade Marks Journal but subsequently cancelled and the cancellation notification was published in the Trade Marks Journal No. 1311 dated 16.1.2004 at page 265. On the other hand, the application No. 596305 filed on 5.5.1993 by Shri Satish Sharma, the respondent No. 2 herein for registration of trade mark BEW in class-12, in respect of almost similar goods as that of the appellant's goods mentioned above, is pending. The said application of the respondent No. 2 was advertised before acceptance under proviso to Section 20(1) of the Trade and Merchandise Marks Act, 1958 in the Trade Marks Journal No. 1238 (Suppl.) dated 8.1.2001. The appellant through attorney Manisha Verma Advocates and Company filed notice of opposition dated 28.3.2001 in triplicate, out of which only one copy of notice of opposition was signed and other copies were not signed under the bonafide impression that since one copy from amongst the unsigned copies will be served on the applicant, therefore, on that copy signature of appellant was not mandatory. The Trade Marks Registry, Mumbai by its letter No. TOP/1058 dated 9.9.2002 required the appellant to file Forms TM-5 and TM-48, which reads: "With reference to the above and your notice of Opposition dated 28.3.2001 I am directed by the Registrar of Trade Marks to inform you that the General Power of Attorney on Non-Judicial Stamp Paper of Rs. 100/- should be filed in the first instance within 15 days from the date hereof, failing which the said notice of Opposition will be treated as void-ab-initio." The said letter also required the appellant to send TM-5 without fee duly signed. Thereafter, the Assistant Registrar of Trade Marks, Mumbai by his letter TOP/No. TMR/2024 dated 26.11.2002 informed both the parties and their attorneys stating as "....I have to inform you that due to not receipt of any reply of official letter No. TOP/1058 dated 09/09/2002, the proposed opposition to application No. 596305 in class 12 is to be treated as void-ab-initio." The appellant has directed the present appeal against this letter of Assistant Registrar of Trade Marks.
(3.) THE respondent No. 2 filed the counter-statement dated 4.2.2005 refuting all the material averments made in the appeal. THE appeal came up before us for hearing on 18.9.2007 when Shri H.L. Verma and Ms. Boomi Desai, Advocates appeared for the appellant and Shri Prashant Sharma, Advocate appeared for the respondent No. 2.;