Z.S.Negi, J. - (1.) THIS order disposes four stay petitions filed by the Appellant in the above appeals, seeking stay of operation of the impugned common order dated 5th October, 2007, passed by the Assistant Registrar of Trade Marks, Ahmedabad, whereby he turned down the proposed oppositions being Nos. AMD -206516, AMD 206512, AMD -206513 and AMD -206514 as time barred.
(2.) IT is the case of the Appellant that it is a well known pharmaceutical company carrying on business in India and abroad in a wide range of pharmaceutical products. Some of the Appellant's pharmaceutical products are manufactured and sold under the registered trade marks 'ALEX', 'VITARAL -G' and 'CANDID' and its series of marks. Certain applicants filed applications for registration of certain trade marks and the same were advertised on 30.3.2005 in the Trade Marks Journal, details of the aforesaid certain applicants and certain trade marks are given below: (i) Application No. 1318538 for registration of trade mark 'ALZEX' in class 5 in the name of Taurus Laboratories Pvt. Ltd., Ahmedabad, advertised in the Trade Marks Journal No. 1328 Suppl. (4) at page 612. (ii) Application No. 1249637 for registration of trade mark 'VITAROL' in class 5 in the name of Royal Labs, Vadodara, advertised in the Trade Marks Journal No. 1328 Suppl. (5) at page 1972. (iii) Application No. 1329130 for registration of trade mark 'ZANID -2' in class 5 in the name of Defi Healthcare Pvt. Ltd., Ahmedabad, advertised in the Trade Marks Journal No. 1328 Suppl. (5) at page 2540. (iv) Appication No. 979794B for registration of trade mark 'ALLEX' in class 5 in the name of Allex India, Surat, advertised in the Trade Marks Journal No. 1328 Suppl. (5) at page 1400. The Appellant opposed the above mentioned applications by filing opposition against each application (Opposition Nos. AMD -206516, 206512, 206513 and 206514, respectively) but the Respondent turned down those oppositions on the ground that they were filed after expiry of the period of limitation. Aggrieved by the impugned common order, the Appellant has filed the above appeals along with petitions seeking stay of operation of the impugned order by ordering the Registrar of Trade Marks not to proceed further in any manner with the applications concerned or register the trade marks applied for and not to issue the registration certificates until further orders of this Appellate Board. The petitions for stay came up before us for hearing, wherein Shri V.S. Hegde, advocate appeared on behalf of the Appellant and the Respondent remained unrepresented. Notice dated 25.2.2008 on Form No. 'C' Under Rule 10 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 was sent to the Respondent and notice dated 11.8.2008 for hearing of stay petitions were sent to both the parties. Thus, the requirements of Section 95 of the Act have been fulfilled; the matters were decided to be heard ex pate. As the facts of all the petitions for stay are similar and the parties are also same, all the four petitions, with the consent of learned Counsel for the Appellant, were heard together and this common order is being passed.
(3.) LEARNED Counsel for the Appellant submitted that the Trade Marks Journal dated 30.3.2005 was made available to public on 3.6.2005 and accordingly the notice of opposition could be filed on or before 3.9.2005 and thereafter within such further period, not exceeding one month in the aggregate, as the Registrar may allow, that is to say latest by 3.10.2005. The Appellants themselves though prepared the notice of oppositions, letter addressed to Registrar as well as the cheque towards the fee, all dated 31.8.2005 were kept ready but due to oversight and shifting of office of the Appellants, the same could be sent to the Trade Marks Registry through courier on 6.9.2005 and the Registry issued receipt No. 362455 dated 7.9.2005 therefor. Learned Counsel submitted that the Respondent issued a notice dated 9.5.2006 to the Appellants to show cause as to why the notice of opposition should not be refused and thereupon the Appellant filed reply by way of affidavit dated 26.5.2006 stating that he notice of opposition could not be filed within the statutory period of three months due to shifting of their office premises and the delay is genuine, not intentional and beyond their control and the Respondent heard the matter on 3.10.2007. It is contended that during the course of hearing the counsel for the opponent (Appellant herein) had submitted to the Respondent that the delay of four days falls within the extendable period of fourth month and Sub -rule (6) of Rule 47 of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules) which required that application on Form TM -44 for extension of time shall be filed before expiry of period of three months under Sub -section (1) of Section 21 of the Act has been struck down by the Division Bench of High Court of Bombay, as null and void in the judgment in Sardar Gurudas Singh Bedi v. Union of India and Ors., : 2006 (33) PTC 321 (Bom.) (DB) and as such the Respondent has no jurisdiction to proceed under Sub -rule (6) of Rule 47 but to consider the requirements of Section 21 of the Act but the Respondent has not at all taken note of this submission and the cited judgments, copies of which were given to him. Apart from this, the Respondent, by ignoring the averments made by the Appellants and submissions made by the counsel during the course of hearing, has seriously erred in casting unnecessary and unfounded aspersions, as detailed in the appeal, on the conduct of Appellant's advocate. Learned Counsel also submitted that the Appellant has a good case on merits and law and if the Respondent proceeds to register the trade marks applications, serious hardship and injury would be caused to the Appellant which cannot be compensated in terms money but on the other hand if operation of the impugned order dated 5.10.2007 is stayed by the Appellate Board, no prejudice or hardship will be caused to the Respondent or the Appellant. By submitting a copy of 'TMR Application Status as on 18.9.2008 taken from the Official Website of the Trade Marks Registry, the learned Counsel informed us that the status of application No. 1318538 for registration of 'ALZEX' trade mark is shown as opposed. He urged that the balance of convenience is in favour of the Appellant, therefore, all the Stay petitions may be allowed.;