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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 ..... s. 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. The basic principles of natural justice require that before the Registrar treats an application to be abandoned on account of failure of the applicant to respond to his objection or proposal sent under sub-rule (1) of Rule 39 he must necessarily give a show cause notice/opportunity of hearing to the applicant before treating the application to have been abandoned. 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 requiring him to produce his evidence in support of the application for registration and in case no evidence is produced, he shall decide the application for registration on its merits, instead of treating the same to have been “abandoned”. If evidence is produced by the applicant in support of his application the Registrar shall proceed to adjudicate upon the application in accordance with law - Decided in favour of Petitioner. - WP (C) No. 7084 of 2010, WP (C) No. 7085 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as abandoned in the record of the Trade Marks Registry, the petitioner is before this Court, seeking correction in the record of the Trade Marks Registry by regularizing and restoring its application followed by adjudication of the said application in accordance with law. The petitioner is also seeking a direction for correcting the status of the application as pending instead of abandoned . 4. In WP (C) No.7085/2010, Shri Gajender Kumar, Shri Ved Ram and Mrs. Neelam trading as M/s. Vedram Sons (as applicant), applied to the Registrar of Trade Marks for registration of the mark PARAS LABEL (in English) on 10.12.1993. The examination report raising certain objections to the aforesaid mark was sent to the applicant on 23.3.1999. The applicant responded to the said communication on 18.1.2000 agreeing to be associated with application Nos.490104 and 613697. The applicant also agreed to disclaim the device of Cow s Head. The hearing in the matter was fixed for 31.12.2001 and a notice was sent to the applicant. Since no one appeared for the applicant on 31.12.2001, the application was treated as abandoned . Vide application dated 7.4.2007, the applicant sought to know the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may within the time stipulated in the said Section give notice in writing of opposition to the registration. The Registrar is required to serve a copy of the notice on the applicant, who is required to send, within two (2) months, a counter statement of the grounds on which he relies for his application and if the applicant does not do so he shall be deemed to have abandoned his application. If the applicant sends a counter statement, a copy of the same is to be served by the Registrar on the person giving notice of opposition. The Registrar is then required to give an opportunity, to both the applicant as well as the opponent to produce evidence upon which they rely and after hearing the parties and considering their evidence the Registrar is required to decide whether the registration is to be permitted and if so subject to what conditions or limitations. Section 23 of the said Act provides for registration of the trademark where either the application has not been opposed or the opposition has been decided in favour of the applicant. It would, thus, be seen that the Act does not envisage treating the application for registration as abandoned on account of the applicant failing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an always be used to supplement the provisions of the Act though they certainly cannot be in derogation of the specific provisions of the Act. Rule 39 (2) of the said Rules in my view serves a salutary purpose by requiring the applicant to respond promptly to the communication received from the Registrar in terms of sub-rule (1). In the absence of, a time limit for responding to such an objection or proposal, the applicant may prolong the matter by filing an application and then not co-operating with the Registrar in adjudication of his application. In fact, instead of leaving it to the Registrar to fix a time for the applicant to respond to his objection or proposal the rule making authority has statutorily prescribed such a time, thereby eliminating any subjectivity in fixing the time for responding such objection or proposal of the Registrar. Such an interpretation will also enable the Registrar to dispose of such applications expeditiously instead of keeping them pending awaiting response from the applicant. 10. The next question which comes up for consideration in this regard is as to whether the provisions of the Rules are directory or mandatory. In this regard, a reference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequences for the applicant, the basic principles of natural justice require that before the Registrar treats an application to be abandoned on account of failure of the applicant to respond to his objection or proposal sent under sub-rule (1) of Rule 39 he must necessarily give a show cause notice/opportunity of hearing to the applicant before treating the application to have been abandoned. This procedure, in my view, becomes necessary considering that the Registrar is competent in terms of the provisions of Section 101 read with Rule 106 to extend the time stipulated in sub-rule (2) of Rule 39 even after the said time has expired. If such a notice/hearing is given to the applicant he will get an opportunity to make an application under Section 101 read with Rule 106 to the Registrar for extension of time and the Registrar if satisfied that the applicant was prevented by sufficient cause from responding to his objection or proposal, may extend the time fixed under sub-rule (2). Unless such notice/hearing is given to the applicant, he would get an opportunity to file an application for extension of time for complying with the objection or proposal of the Registrar. 12. As regar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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