Z.S. Negi, Vice-Chairman - (1.) THESE appeals under Section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) are directed against the three orders all dated 9.5.2005 passed by the Assistant Registrar of Trade Marks, Ahmedabad, whereby he treated the opposition Nos. AMD-190624, AMD-190625 and AMD-190626 as time barred and disposed them of as rejected and, accepted for registration the application Nos. 630740, 630742 and 630743B.
(2.) The appellant is stated to be a company, engaged in the business of manufacturing and marketing consumer and industrial products and services for the last few decades which had adopted various trade marks such as NIRMA, SUPER NIRMA and NILAM for different goods covered under different classes and obtained registration of about 85 trade marks which are renewed, valid and subsisting till today. The appellant has also made about 179 applications for registration of trade marks NIRMA, SUPER NIRMA and NILAM under various classes and the same are pending registration. Similarly, the applications for registration of trade marks in about 17 other countries of the world are pending. The appellant has got the numerous label marks NIRMA registered under the Copyright Act, 1957. It is the contention of the appellant that the respondent No. 1 had made three applications No. 630740, 630742 and 630743B for registration of trade mark NIRMAN under classes 24, 7 and 23, respectively. The said applications were advertised before acceptance in the Trade Marks Journal No. 1326 Suppl. (1), dated 27.12.2004. The said Trade Marks Journal was made available to the public on 14.1.2005 which fact is certified by the Controller-General of Patents, Designs & Trade Marks. After receipt of the said Journal on 25.01.2005, the appellant filed oppositions on 23.4.2005 which were numbered as AMD-190624, AMD-190625 and AMD-190626. It is averred that the Assistant Registrar of Trade Marks without affording any opportunity of being heard to the appellant rejected all the three oppositions which rejections are illegal and also amount to miscarriage of justice. Aggrieved by the impugned order dated 9.5.2005, the appellant filed the present appeals raising same or similar objections under Sections 9, 11, 12, 18 and 29 of the Act which were raised in the notice of oppositions. Though the notice in Form-C under Rule 10 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 has been served on the respondent No. 1 on 21.9.2006, the respondent No. 1 has not chosen to file Counter-statement either directly or through its agent. The appeals came up for hearing before us at the Circuit Bench sitting at Ahmedabad on 19.2.2008 when Shri Y.J. Trivedi, Advocate appeared on behalf of the appellant but none represented the respondents. As the facts and the issues involved in all the three appeals were similar and parties were also same, it was decided that OA/46/2005/TM/AMD be taken up for arguments and the decision arrived at in that original appeal 46/2005/TM/AMD shall be applied to the other two OA/47 & 48/2005/TM/AMD.
(3.) SHRI Y.J. Trivedi, learned Counsel for the appellant contended that though the application for registration of the trade mark of respondent No. 1 was advertised before acceptance in the Trade Marks Journal dated 27.12.2004 but on the date of the said advertisement, the Office of the Assistant Registrar of Trade Marks, Ahmedabad was not having the copy of the said Journal. As the trade marks applied for registration by the respondent No. 1 were deceptively similar, structurally as well as phonetically, to the well accepted and well known in the domestic market and also internationally reputed trade marks of the appellant, therefore, the appellant was required to file the oppositions to the applications for registration of the respondent No. 1. The said publication dated 27.12.2004 was received by the attorney of the appellant very late only on 25.01.2005 and accordingly, the opposition was posted in Ahmedabad by speed post on 23.04.2005 and the same was received by the Registry of Trade Marks on 25.4.2005. Learned Counsel submitted that the opposition is as such within the period of three months. The learned Counsel in support of his submission relied upon the decisions in Anup Engineering Ltd. v. Controller of Patents, New Delhi and Ors. Gujrat Law Reporter Vol. XXIII (2) 1982 (2) and Gokul Spices Private Limited v. Ramdev Food Products Private Limited 1998 (0) GLHEL 203724. The learned Counsel submitted that though the opposition (Form-5) was within the period of three months, still the Assistant Registrar of Trade Marks, Ahmedabad, who has given the number to Opposition as AMD/190624, has not given any opportunity of being heard to the appellant and passed the impugned order on the ground that the opposition filed by the appellant is beyond the prescribed time limit under Rule 47(6) of the Trade Marks Rules, 2002 (hereinafter referred to as the Rules). The learned Counsel submitted that the respondent No. 2 has passed the impugned order without applying the proper procedure or rules and has committed a gross error in passing the same without giving any reasons and without considering the merit, and as such, the impugned order is nothing but miscarriage of justice.;