Mr. Pankaj Kumar & Mr. Vikas Khela, Adv. v. THE REGISTRAR OF TRADE MARKS NEW DELHI .....

1. This writ petition was filed with the grievance that the respondent inspite of acceptance of petitioner’s application for registration six years ago is not advertising the same in the Trade Marks Journal and seeking mandamus to the respondent to advertise/publish the petitioner’s Trade Mark application in the Trade Marks Journal.

2. Notice of the petition was issued.

3. The petitioner has now filed CM No.12413/2011 averring that the respondent has issued a notice dated 2nd August, 2011 to the petitioner under Section 19 of the Trade Mark Act r/w Rule 42 of the Trade Marks Rules, 2002 to show cause as to why the acceptance order should not be 2011:DHC:4304 withdrawn, having been erroneously issued and calling the petitioner for hearing on 2nd September, 2011; the petitioner seeks stay of the proceedings in pursuance to the said notice to show cause.

4. It is not in dispute that the respondent has a power to withdraw the acceptance order. The counsel for the petitioner however contends that such power cannot be exercised after a long delay of six years and for the reasons stated i.e. of the mark being not registrable within the meaning of Section 9 of the Act. He contends that the said objection has already been considered by the respondent and it is only thereafter that the acceptance order was issued. Attention in this regard is invited to the examination report filed as Annexure P-2 to the petition.

5. The counsel for the petitioner has also relied upon the order dated 14th June, 2010 on CM No.8356/2010 in W.P.(C) 13802/2009 whereby the hearing of the show cause notice was adjourned.

6. The respondent has merely issued a notice to show cause to the petitioner and also given an opportunity of hearing to the petitioner. The respondent is yet to take a decision whether the acceptance order issued to the petitioner is to be withdrawn or not. This Court is of the opinion that the respondent cannot be prevented by this Court in this petition from taking a decision which it is authorized under the law to take. If at all, the respondent in pursuance to the said show cause notice withdraws the acceptance order, the petitioner will have to seek remedy thereagainst and in any case owing to development aforesaid, this writ petition is infructuous. However if the petitioner is able to satisfy the respondent that the acceptance order is not liable to be revoked/withdrawn, the respondent will have to proceed with the advertisement.

7. As far as the order dated 14th June, 2010 on which reliance is placed is concerned, the same is but an interim order and does not constitute a precedent. The counsel for the petitioner himself on enquiry admits that W.P.(C)13802/2009 has since been disposed of and the interim order has not been confirmed.

8. In the circumstances, the writ petition itself is disposed of as infructuous and the date fixed of 22nd February, 2012 is cancelled but with the following directions:a. The respondent to pass an order in pursuance to the show cause notice dated 2nd August, 2011 on or before 30th September, 2011; b. If the acceptance order is not withdrawn in pursuance to the show cause notice aforesaid, the respondent to proceed to advertise the same in accordance with law within three months thereafter unless an order stating reason for refusing advertisement is passed within the said time.

9. It is clarified that if the petitioner remains aggrieved from the order in pursuance to the show cause notice dated 2nd August, 2011 or any other order passed by the respondent, the petitioner shall have remedies in law. No order as to costs. Dasti.

RAJIV SAHAI ENDLAW, J AUGUST 24, 2011 pp..