Z.S. Negi, Chairman - (1.) THIS appeal under Section 91 of the Trade Marks Act, 1999 is directed against the order dated 19.7.2007 passed by the Assistant Registrar of Trade Marks, Chennai whereby he has rejected the application on Form TM-57 for review of refusal of application No. 642053 for registration.
(2.) The appellant, a German company established in 1982 and engaged in the manufacturing and marketing of hand tools and implements, applied for registration of trade mark 'Knipex' in class 8 in India on 5.10.1994 and the examiner raised objection under Section 9 of the of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) citing the existence of a conflicting trade mark 'KNIPEX' and directed the appellant to file reply to the report within a month's time. The appellant on 15.3.2000 filed a reply to the examination report along with a request on Form TM-56 for extension of time for filing the reply. In response to the objection under Section 9 of the Act as raised by the examiner it was submitted that the trading style of the applicant is KNIPEX-WERK, which is different from the trade mark and hence the trade mark was distinctive. A request on Form TM-16 dated 15.3.2000 with the requisite fee for amending the user details to read as used since 1981 and a user affidavit dated 21.2.2000 to this effect were filed. Thereafter, the appellant received the respondent's order of refusal under official letter No.TLA/4531 dated 3rd June, 2003 stating that the application is refused registration on the grounds of objection raised under Section 12(1) of the Act can not be waived.
(3.) THE appellant filed the Review Application on 1st July 2003 under Section 97(c) of the Act read with Rule 115 of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules). THE Assistant Registrar of Trade Marks passed impugned order on 19th July, 2007 whereby he rejected the Review Petition. It is stated that the finding of the respondent that the applicant has resorted to filing the Review in order to circumvent the official fee for appeal is without any basis and in total denial of the remedies available to the appellant under the Act and such a finding is contrary to provisions of the Act. It is further stated that the respondent erred in not giving an opportunity to the appellant to present evidence on the registrability and strength of the trade mark KNIPEX.;