S. Usha, Member (T) - (1.) THIS appeal is arising out of the order dated 28/06/2001, whereby the notice of opposition dated 26/11/1999 in opposition No. DEL.T.1449 was ordered not to be taken on record to the proceedings being barred by limitation. The said appeal was filed before the Hon'ble High Court, Delhi in CM(M)599/2001 and the same has been transferred to this Appellate Board pursuant to the provision of Section 100 of the Trade Marks Act, 1999 and the same is renumbered as TA/235/04/TM/DEL.
(2.) The 2nd respondent herein filed an application for registration of the trade mark REACTION under application No. 530229 in class 25 in respect of footwears under the provisions of the Trade and Merchandise Marks Act 1958 (in short the Act). The said application was advertised in the Trade Marks Journal No. 1203(S) on 21/07/1999 and was made available on the same day for sale. The Trade Mark Journal was dispatched only on 27/07/1999 and the same was received by the appellant on 31/07/1999. The appellant herein filed their notice of opposition on 26/11/1999 under the provisions of Section 21 of the Act. The 1st respondent herein objected to taking on record the notice of opposition on the ground that the notice of opposition was filed beyond the prescribed period and as such it was time barred. The appellant opposed the same and advanced arguments before the Registrar. The appellant contended before the Registrar that the limitation is to be calculated from the date of receipt of the Trade Mark Journal by the attorneys and/or from the date of dispatch of the Journal from the Trade Marks Registry.
(3.) THE 1st respondent after hearing the appellant herein had passed an order on 28/06/2001 rejecting the notice of opposition on the ground that the relevant date for computation of limitation is the date when the said journal was made available to the public, which is on 21/07/1999 and the relevant date will not start from the date of dispatch or delivery. THE notice of opposition being filed after the specified period was barred by limitation and therefore rejected.;