Z.S.Negi, J. - (1.) THIS is an appeal under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 3.5.2006 passed by the Assistant Registrar of Trade Marks whereby the Interlocutory Petition dated 8.8.2005, filed by the respondent No. 2 herein in rectification No. AMD -60931 to registered trade mark No. 535953B in class 3 was allowed and further evidence filed by the registered proprietor taken on record and liberty given to the appellant herein to file rebuttal within 30 day from the receipt of the impugned order dated 3.5.2006.
(2.) THE appellant herein, claiming to be the subsequent proprietor of the trade mark 'AJANTA' under Nos. 191915 as of 3.9.1959 in class 21 in respect of brushes included in class 21, 220724 as of 19.2.1964 in class 3 in respect of non -medicated toilet preparations, cosmetics, perfumes and 344242 as of 18.12.1978 in class 21 in respect of tooth brushes included in class 21 (which are stated to be renewed from time to time and are valid and subsisting in the name of the appellant), filed a rectification application on 11.04.2002 on Form TM -26 before the Registrar of Trade Marks, Ahmedabad to expunge, vary, cancel or remove the entry relating to the registered trade mark AJANTA, in the name of Manubhai Ukabhai Patel & others trading as M/s Ajanta Transistor Clock Mfg. Company, under No. 535953B as of 27.8.1990 in respect of the goods included in class 3. The Trade Marks Registry by its letter No. TOP/GEN/2416 dated 5.8.2002 acknowledged receipt of Form TM -26 to the appellant and by endorsing a copy of the said letter informed the registered proprietor/respondent No. 1 that rectification proceedings have been intimated by the above given appellant/applicant and thereafter, the Registrar served vide letter dated 25.9.2003 a copy of Form TM -26 on the original registered proprietors/respondent No. 1 herein calling upon them to file their counter -statement under Rule 95 of the Trade and Merchandise Marks Rules, 1959 (in short the repealed Rules) of the grounds on which the rectification application is contested but the respondent No. 1 did not file the counter -statement. In the meanwhile, the respondents No. 1 and 2, knowing fully well as to the pending rectification application of the appellant, filed a rectification application before the Trade Marks Registry at Mumbai against the registered trade mark No. 220724 in class 3 as of 19.2.1964 of the appellant and the same is still pending before the Registrar of Trade Marks, Mumbai. The respondents No. 1 and 2 also filed on 18.1.2003 a suit, being Civil Suit No. 163 of 2003, against Mahipal Vijaychand Sariya and others, for the infringement of Trade Mark and passing off wherein the appellant entered appearance as the successor -in -interest of the deceased Mahipal Vijaychand Sariya, and filed application raising objections, amongst others, as to the maintainability of the suit against the deceased person because a suit against the dead person is nullity and hence required to be dismissed. Thereupon, the respondents No. 1 and 2 moved an application, for amendment of the plaint to delete the name of deceased Mahipal Vijaychand Sariya and to add the name of the appellant in the suit, which is yet pending for final hearing and disposal. It is notable that the City Civil Court at Ahmedabad has not granted any ex parte interim injunction in the suit of the respondents No. 1 and 2. The appellant also filed two separate suits being Suit Nos. 667 of 2003 and 2877 of 2003 before the Hon'ble High Court of Bombay and the Hon'ble Single Judge of that High Court, after hearing the parties in the application for interim injunction, was pleased to grant the interim injunction against the respondents No. 1 and 2 in the respective suits as to the use of the trade mark AJANTA for their products and the appeals preferred by the respondents No. 1 and 2 before the Hon'ble Division Bench of Bombay High Court are pending for the adjudication.
(3.) IT is further stated that it appears from the impugned order dated 3.5.2006 passed by the Assistant Registrar in the Interlocutory Petition that the respondent No. 2, after the aforesaid two Civil Suits of the appellant, approached the Assistant Registrar through its Trade Marks Attorneys, H.K. Acharya & Co., vide their letter dated 1.4.2004 whereby they filed General Power of Attorney and stated that Ajanta India Ltd. has become the proprietor of the registered trade mark No. 535953B and other registered trade marks by virtue of assignment deed dated 19.9.2002 and requested that a copy of Form TM -26 be served on them on behalf of Ajanta India Ltd. and the Assistant Registrar taking cognizance of the said letter served a fresh copy of Form TM -26 on H.K. Acharya & Co. vide official letter dated 2.4.2004 directing the respondent No. 2 to file the counter -statement of the grounds on which the registered proprietor relied upon. The appellant alleges that the Assistant Registrar neither informed to the appellant about the letter dated 1.4.2004 of H.K. Acharya & Co. at all nor communicated the said official letter dated 2.4.2004 to the appellant. The appellant for the first time came to know as to the filing of the counter -statement dated 6.4.2004 by respondent No. 2 when the Assistant Registrar served a copy of thereof vide office letter No. TOP/02792 dated 23.6.2004 on the appellant and as such the appellant filed a request for extension of time on Form TM -56 dated 20.8.2004 and thereafter, filed the evidence in support of application for rectification by way of an affidavit dated 17 September, 2004 of Harish Motichand Sariya together with Exh. -1 to 9 and documentary evidences under rule 50 of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules). The appellant has in para 31 of the affidavit, categorically objected the locus -standi of the said Ajanta India Ltd. by stating as under: 31. At the further out -set, I say and submit that the counter statement has been made and filed by one Vikram Krishnamurthi Iyer of Ajanta India Ltd. who has no locus standi to make and file the counter statement. Neither he nor Ajanta India Ltd. are the proprietor of the above referred registered trade mark. In the circumstances, the Registrar should proceed with the above case as if no counter statement has been filed by the Registered Proprietor and in such a case, the Registrar should accept all the statements and submissions made by the Applicant in the application on Form TM -26 as also in the Statement of Case as deemed to have been admitted by the Registered Proprietor.;