Z.S. Negi, Chairman - (1.) THE above rectification application is for the removal of trade mark registered under No. 1212915B, in the name of Sudhir S. Bhatia trading as V. Bhatia International, from the register of trade marks or rectification of register under Section 125 of the Trade Marks Act, 1999 (hereinafter referred to as the Act). During the pendency of the application, the respondent in the rectification application (for the sake of convenience hereinafter referred to as the respondent) has under Section 151 of the Code of Civil Procedure, 1908 filed a miscellaneous applications being M.P. No. 111/2007 seeking permission to file additional evidence and the applicant in the rectification application (for brevity to be called as the applicant) has also filed M.P. No. 106/2008 seeking consolidation of all the five matters specified in that miscellaneous application.
(2.) In the miscellaneous application (M.P. No. 111/2007) for consolidation of five cases viz. TA/62 & 63/2003, OA/20 & 90/2004 and ORA/14/2007, the applicant states that these matters may be consolidated on the grounds that the trade marks sought for registration, goods in respect of which trade marks are registered, documents on which the parties relied upon, the issue involved therein is and the parties to the proceedings are same or substantially same. The applicant craves to rely upon the Order No. 75 of 2006 dated 4th day of August 2006 in M.P. No. 91/2004 in OA/90/2004/TM/MUM, wherein this Appellate Board was, after hearing arguments by both the parties, pleased to observe, inter-alia, that "...it will be in the interest of justice, if the Registrar of Trade Marks, Mumbai is directed not to issue the certificate of registration till further order" and "directing the Ld. Registrar of Trade Marks not to issue certificate of registration until further directions". It is submitted that the basic issues to be adjudicated in all the matters, inter-alia, (i) as to prior user of the LAXMANREKHA/LAXMANREKHAA in respect of goods, such as, insecticide and pesticide preparations covered under class 05 of the Fourth Schedule of the Trade Marks Rules, 2002; (ii) dishonest subsequent adoption of an identical and/or deceptively similar mark MAGIC LAXSHMANREKHA/MAGIC LAXMANREKHA in respect of the same or similar goods covered under class 5 of the Fourth Schedule to the Trade Marks Rules, 2002; and (iii) fraud played by the respondent upon the Registrar and also upon this Appellate Board by suppression of material facts and documents and, producing and relying upon false, fabricated, forged and obtained documents to prove is false claim of proprietorship. That, in view of the issues, trade marks, goods, documents used and relied upon, grounds adopted and parties to the proceedings are same or common, and this Appellate Board be pleased to permit consolidating all the above said five cases and list it together. It is stated that no prejudice whatsoever will be caused to the respondent or any other person if all the proceedings are consolidated and listed together for final hearing. Hence, the applicant has prayed for consolidating all the five matters and list them for final hearing. In the miscellaneous application (M.P. No. 106/2008), the respondent states that its case through out has been that the applicant has manipulated records to create a case based on false user and that it has through the right to information applications collected certain materials in respect of the applicant and now seeks permission to file the additional affidavit with those documents/materials as additional evidence. It is alleged that the applicant has deliberately concealed material particulars and approached the Registrar of Trade Marks with unclean hands and made false statement of user before him. Averment is made that at the time of filing evidence and/or hearing of the matter by the Registrar, the respondent was not in possession of the documents presently sought to be filed, whereas the applicant was always aware of the same though it sought to camouflage the same. The respondent has stated that the documents along with its affidavit are otherwise very relevant and necessary for proper adjudication of the matter and the present application is bona fide and made for genuine reasons. It is urged that in the interest of justice, equity and good conscience, the additional evidence may not be shut out and is taken on record.
(3.) THE applicant filed reply to the miscellaneous application for filing additional evidence only by denying the material averments made in the application and stating that the application is beyond the scope of statutory provisions, frivolous, vexatious, founded with mala fide and ulterior motive, and without any merit. It is stated that the applicant categorically deny the allegations, in particular that it has manipulated records to create a case based on false user or approached the Registrar with unclean hands or suppressed any material facts or documents relevant to the proceedings. It is submitted that collecting copies of the documents through the right to information application is a deliberate attempt of respondent to project that it had no prior knowledge about those documents and thus to mislead this Appellate Board. THE documents sought to be filed are irrelevant to the proceedings and in any event all along the proceedings right from the lower tribunal up to present proceedings, the documents referred to by the appellant were within its knowledge and at no point of time the respondent whispered about these documents in its pleadings and apart from this, the documents are old and most of them are forming part of the records of the proceedings and not required at this stage of proceedings. It is further stated that the present application, even otherwise, is not maintainable at this highly belated stage and in contravention of Rule 8 of the Intellectual Property Appellate Board (Procedure) Rules, 2003. THE present application is against the principles of allowance of further evidence and further evidence is permissible only to put forth the subsequent events and happenings before the court/tribunal. THErefore, the question of taking them as further evidence does not arise as the respondent was always aware of these documents and should have filed the same by obtaining them from the authorities at the earlier stages of proceedings. It is submitted that the respondent is time and again filing frivolous applications in order to build up the case in this manner knowing well that the present proceedings are appeal proceedings wherein the Appellate Board has to appreciate the evidence which is adduced in the lower tribunal and not to permit further documents on record, especially which is bound to delay the final disposal of the appeal (sic it is rectification proceedings). THE present application is nothing but yet another attempt to stall the proceedings and to divert the attention of this appellate Board from the merits of the case.;