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TMI Blog2014 (2) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... is that on receipt of the said letter dated 8.6.2001 it had agreed to association with application No.745528, besides agreeing to disclaim the word "PREMIUM". 2. Vide notice dated 4.3.2005, the Registrar of Trade Marks informed the applicant that since it had failed to comply with the office requirements called for, the application for registration was ordered as abandoned, on account of its default in prosecuting the said application. It was further stated in the said notice dated 4.3.2005 that if the applicant had already complied with the office requirements it should furnish copies of the supporting documents within 21 days from the date of the receipt of the said notice for re-consideration of its case. The applicant claims to have responded to the said notice on 9.5.2005 stating therein that the application had been wrongly abandoned since they had already complied with all the requirements of the Trade Marks Registry vide their letter dated 7.7.2003. A copy of the letter dated 7.7.2003 was annexed to the aforesaid letter. 3. The case of the petitioner is that on coming to know on 23.8.2008 that their application was shown as "abandoned" instead of "pending registration", ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r claims to have acquired rights over the said trademark PARAS LABEL (in Hindi). A notice for hearing on 31.12.2001 was issued by the Trade Marks Registry to the applicant. Since no one appeared on that date, the application was treated as abandoned on account of non-appearance of the applicant. Vide letter dated 7.4.2007, the petitioner requested respondent No.1 to intimate the status of their application and fix a date of hearing for its disposal. According to the petitioner, they came to know on 23.8.2008 that their application was being treated as "abandoned" instead of being treated as "pending", by the Trade Marks Registry. Vide letter dated 25.8.2008 the petitioner lodged protest with the Deputy Registrar of Trade Marks for treating their application as "abandoned". Since the Trade Marks Registry continues to treat the application to be "abandoned", the petitioner is before this Court seeking regularization and restoring of their application. They are also seeking correction of the status of their application from "abandoned" to "pending" and an early hearing for adjudication of the said application. 6. Section 18 of the Trade & Merchandise Marks Act, 1958 enables a person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or does not apply for a hearing within three (3) months from the date of receipt of objection or proposal of the Registrar in terms of sub-rule (1) of the said Rule. 8. The contention of the learned counsel for the petitioners is that since the Act does not provide for treating the application to be "abandoned", the aforesaid Rule, to the extent it provides for treating the application to be "abandoned" being contrary to the provisions of the Act is required to be discarded and cannot be resorted to by the Registrar. The learned counsel for the respondents, on the other hand, contended that though the Act does not expressly provide for treating the application as "abandoned" on account of the applicant not responding to the objections or proposal sent to him by the Registrar, it also does not bar such a procedure being adopted by the Registrar and, therefore, the provisions of the Rule cannot be said to be contrary to the provisions of the Act. 9. I am in agreement with the learned counsel for the respondents that though the Act does not provide for treating the application to be "abandoned" on account of the applicant not responding to the objections or proposal of the Registra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 101 of the Act read with Rule 106 of the Rules do enable the Registrar to extend the time prescribed in sub-rule (2), in appropriate cases. Since the Registrar may is competent to extend the time in appropriate cases, it would be difficult to say that the provisions of sub-rule (2) are mandatory. On a conjoint reading of the aforesaid provisions of the Act and the Rules, I am of the view that in a case where an applicant does not amend his application according to the proposal of the Registrar sent to him in terms of sub-rule (1) or does not submit his observation or does not apply for hearing, the Registrar may, in appropriate cases, treat the application to have been abandoned. 11. The next question which comes up for consideration is as to whether the Registrar is required to give any show cause notice or opportunity of hearing to the applicant before he treats the application as abandoned in terms of sub-rule (2) of Rule 39. Section 98 of the Act to the extent it is relevant provides that the Registrar shall not exercise any discretionary or other power vested in him by the Act or the Rules made thereunder adversely to a person applying for the exercising of that power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /proposal sent to him under sub-rule (1) of Rule 39. On receipt of such a notice the applicant will be entitled to file an appropriate application seeking extension of time for the said purpose. The Registrar will then pass an appropriate order on his application seeking extension of time. In case the application for extension of time is allowed, the Registrar shall proceed to adjudicate upon the application in accordance with law. If, however, the application is rejected, and consequently for registration of trademark is deemed to have been "abandoned" in terms of sub-rule (2) of Rule 39, the applicant shall be entitled to avail such remedy as is open to him in law against such a decision of the Registrar. It is made clear that while deciding the application for extension of time as also while treating the application for registration to have been "abandoned", the Registrar shall pass a speaking order, taking into consideration the plea taken by the applicant while seeking extension of time. 14. In the cases where the Registry has treated the application as abandoned on account of failure of the applicant to produce evidence, the Registrar shall give a notice to the applicant req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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