Lal Bhambani v. The Registrar of Trade Mark

1. Whether reporters of Local papers may Not necessary be allowed to see the judgment?

2. To be referred to the reporter or not? Not necessary

3. Whether the judgment should be reported Not necessary in the Digest?

RAJIV SAHAI ENDLAW, J.

1. The petition seeks mandamus to the respondent to issue Certificate of Registration of Trademark „FA‟ in Class-03 to the petitioner.

2. The petitioner claims to have applied for registration in the year 1989. It is further claimed, that in pursuance to the said application the mark was advertised in the Trade Mark Journal on 1st October, 1993; that no objections were received and as per the law a Registration Certificate should have been issued to the petitioner after three months of such publication but was not 2011:DHC:5315 issued; that representations were made by the agents of the petitioner in this regard in the years 1995,1996 & 1997; that in 2003 the petitioner was informed that the trademark was not registered; that in 2007 another application for registration of the same trademark in Class-03 was made; that in the year 2010-11 the petitioner learnt from the website of the respondent that the status of the earlier application was shown as “abandoned”; that the petitioner filed application on 16th February, 2011 in Form TM-57 for review of order treating earlier application for registration as “abandoned”; that no steps have been taken by the respondent on the review application.

3. The petitioner has not filed any proof of having made the representations in the years 1995, 1996 & 1997.

4. The counsel for the respondent appearing on advance notice contends that the review can be applied for within 30 days of the order and the respondent is not bound to entertain the review if made after 30 days. He also points out that while in the review application (Form TM-57 at page 10 of the paper book) it is stated that the petitioner learnt of the status of earlier application as “abandoned” on 15th February, 2011 but in the list of dates it is stated that the petitioner in 2010-11 came to know the status of earlier application as “abandoned”.

5. The petitioner has also not stated as to when the application was treated as abandoned by the respondent. On enquiry, the counsel for the petitioner states that it is for the respondent to tell.

6. The entire conduct of the petitioner shows that the petitioner inspite of knowledge that he was entitled to the certificate of registration in the year 1993, did not take steps whatsoever for having not been issued the certificate. The Power of Attorney in favour of the registration service is stated to have been filed and letters in the years 1995,1996 & 1997 stated to have been written by the registration service but again the petitioner has chosen not to place the same before this Court.

7. As per the case of the petitioner himself, the petitioner at least in the year 2003 was informed vide letter dated 29th April, 2003 (which has also not been placed before the Court) that the trademark had not been registered. The petitioner even thereafter did not take any steps whatsoever and applied for review only on 16th February, 2011. There is no explanation whatsoever for waiting for seven years to file review application. Merely because the petitioner claims to have checked on the website of the respondent on 15th February, 2011 would not create any cause of action in favour of the petitioner.

8. The counsel for the petitioner seeks adjournment to file a better affidavit and documents.

9. When the petition is filed and comes up for admission, the petitioner is expected to put up his case so as to convince the Court that a case for issuance of notice is made out. The petitioner is represented by professionals and the matter cannot be permitted to be pursued in such a lackadaisical manner.

10. Moreover the petitioner by making a second application in the year 2007 clearly abandoned the earlier application.

11. There is no merit in the petition.