2013 (7) TMI 326 - HC - Indian Laws

Communication of objection - Petitioner not informed of objection raised on trademark application - Authority treated application abandoned - Held that - respondent was bound to communicate any objection or proposal in writing to the applicant. The respondent admittedly did not do so. Placing the notice of the website does not constitute compliance with that Rule 38(4) - Rule 38(4) by itself does not require an applicant for registration to inspect the respondents website. The petitioner therefore cannot be imputed with the knowledge of the said letter - Mere posting of the letter on the website does not constitute communication of the objection or proposal in writing - Letter can be said to have been communicated to the petitioner only on the date on which the petitioner noticed it on the website - Petitioner s application for registration cannot therefore, be deemed to have been abandoned - Decided in favour of Petitioner.

Summary

Issues:
1. Failure to fix a date of hearing for registration of a trade mark "CMA" in class 41.
2. Communication of objections or proposals in writing to the applicant under Rule 38 of the Trade Marks Rules, 2002.

Issue 1: The petitioner, a body corporate under The Institute of Cost and Works Accountants Act, 1959, sought a writ of mandamus directing the Registrar of Trade Marks to fix a date of hearing for its application for registration of the trade mark "CMA" in class 41. Despite several enquiries, the petitioner did not receive any response from the respondents regarding its application for registration, hindering its ability to provide training and award degrees. The petitioner discovered an examination report on the respondents' website, dated 19.09.2011, raising objections to the application and requiring a response within one month to avoid abandonment under section 132 of the Trade Marks Act, 1999. However, this report was not directly communicated to the petitioner or its advocates but was only posted on the website.

Issue 2: Rule 38 of the Trade Marks Rules, 2002 mandates that any objection or proposal be communicated in writing to the applicant. The court held that the mere posting of the objection on the website did not fulfill the requirement of written communication under Rule 38(4). The respondents failed to communicate the objections in writing to the petitioner, and there was no legal obligation for the petitioner to inspect the website regularly. The court emphasized that Rule 38(4) does not impose a duty on the applicant to monitor the respondents' website. As the petitioner only became aware of the objection on 13.03.2012 when it was noticed on the website, within one month, the petitioner's advocate applied for a hearing, which was denied. Consequently, the court declared that the petitioner's application for registration had not been abandoned and disposed of the writ petition in favor of the petitioner.

In conclusion, the judgment highlighted the importance of proper communication of objections or proposals in writing to applicants under Rule 38 of the Trade Marks Rules, 2002, emphasizing that posting on a website does not suffice as written communication. The court's decision protected the petitioner's rights by ensuring that the application for registration was not deemed abandoned due to the lack of proper communication by the respondents.