2012 (2) TMI 631 - HC - Indian Laws

Summary

Issues Involved:
1. Condonation of Delay
2. Restoration and Renewal of Trademark
3. Issuance of Notice in Form O-3
4. Interpretation of Section 25 of The Trade and Merchandise Marks Act, 1958
5. Administrative Act of Removal of Trademark

Summary:

1. Condonation of Delay:
The appeal was filed with a delay of 224 days. Despite opposition, the delay was condoned considering the significance of the statutory interpretation involved.

2. Restoration and Renewal of Trademark:
The respondent sought a writ of mandamus for the restoration and renewal of the trademark "MBD," arguing that the statutory Notice in Form O-3 was not sent by the Registrar, which is a prerequisite for removal and non-renewal. The learned Single Judge allowed the writ petition, holding that the mandatory Notice in Form O-3 was not issued, making the removal of the trademark illegal.

3. Issuance of Notice in Form O-3:
The Single Judge found that the Registrar's counter affidavit was presumptive and lacked evidence of issuing the Notice in Form O-3. The Judge concluded that the removal of the trademark without issuing the mandatory notice was improper and illegal.

4. Interpretation of Section 25 of The Trade and Merchandise Marks Act, 1958:
The court interpreted Section 25, emphasizing that the removal of a trademark must follow the issuance of a notice in Form O-3. The court held that the removal of a trademark without following the mandatory procedure prescribed in Section 25(3) and Rule 67 is invalid. The judgment highlighted that the expiration of registration does not automatically lead to removal without compliance with the statutory notice requirement.

5. Administrative Act of Removal of Trademark:
The court rejected the argument that removal of a trademark is merely an administrative act and held that it involves civil consequences and must comply with the statutory procedure. The court emphasized that the removal of a trademark without issuing the mandatory notice is unjust and illegal.

Conclusion:
The appeal was dismissed, and the direction for restoration and renewal of the trademark was upheld, subject to the Registrar verifying that the respondent is the registered proprietor or successor and that no similar marks have been registered in the interim. The judgment reinforced the mandatory nature of the notice requirement before removing a trademark from the register.