Full Text
Date of Decision: 3rd July, 2023 C.A.(COMM.IPD-TM) 7/2023
DHIRAJ KUMAR NANDA ..... Appellant
Through: Ms. Shikha Sachdeva & Ms. Mugdha Palsule. Advocates. (M:7073569007)
Through: Mr. Amol Dixit, Advocate for R-2.
JUDGMENT
1. This hearing has been done through hybrid mode.
2. The Appellant-Dhiraj Kumar Nanda has filed the present appeal under Section 91(1) of the Trade Marks Act, 1999 seeking setting aside of the order dated 23rd September, 2022 by which the Appellant’s Trade Mark Application No. 1844701 (hereinafter, ‘the Application’) has been treated as abandoned.
3. The case of the Appellant is that the Appellant had filed a Trade Mark Application bearing no. 1844701 for the mark ‘NUTRILIFE’ in Class 5 for ‘pharmaceutical and medicinal preparations’ on 28th July, 2009. The said Application was advertised in the Trade Mark Journal No. 1705 on 10th August, 2015. Thereafter, Respondent No. 2-M/s Alticor Inc. filed a Notice of opposition to application for registration of a trade mark under Section 21(1) of the Trade Marks Act, 1999 and opposed the Application on 2nd December 2015. The hearing in the Opposition was scheduled for 6th July 2022 and 3rd September, 2022.
4. On 23rd September 2022, the Application was treated as abandoned. The case of the Appellant is that it did not receive any hearing notices in the matter and thus could not defend its position qua the trade mark which was applied for.
5. Heard. Vide order dated 3rd March 2023, notice was issued in this case. The service is effected.
6. Today, Mr. Amol Dixit, ld. Counsel for Respondent No. 2 appears for the contesting Respondent-M/s Alticor Inc., Ld. Counsel does not dispute the fact that hearing notice was not issued to the Appellant.
7. It is also submitted that Respondent No. 2 had received notice and had appeared on the date of the hearing.
8. Rule 50 of the Trade Marks Rules, 2017 provides as follows: “(1) The Registrar, after the closure of the evidence, shall give notice to the parties of the first date of hearing. The date of hearing shall be for a date at least one month after the date of the first notice. [...] (3) If the applicant is not present at the adjourned date of hearing and at the time mentioned in the notice, the application may be treated as abandoned. (4) If the opponent is not present at the adjourned date of hearing and at time mentioned in the notice, the opposition may be dismissed for want of prosecution and the application may proceed to registration subject to section 19. (5) The Registrar shall consider written arguments if submitted by a party to the proceeding. (6) The decision of the Registrar shall be communicated to the parties in writing at the address given for service.”
9. Further, the Bombay High Court in Institute of Cost Accountants v. of the Trade Marks Rules, 2002 as follows:
10. As per the settled legal position, the Registrar is required to give notice to the parties, of the opposition hearing. Considering the fact that the hearing notice has not been received by the Appellant in respect of the Opposition proceedings, and the matter proceeded in default, the impugned order abandoning the application is set aside.
11. A fresh date of hearing shall be communicated by the Registrar of Trademarks to the parties, on which the date the matter shall be heard and orders shall be passed in the opposition in accordance with law.
12. The appeal is allowed in the above terms.
PRATHIBA M. SINGH JUDGE JULY 3, 2023 dj/dn