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Judgment
S. Usha, J
Appeal arising out of the order allowing the opposition No. 172194 and refusing registration of the trade mark 'RIGHT CHOICE' in class 30 in
respect of rice of all kinds under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act).
The Appellant herein filed a miscellaneous petition No. 41/08 under Section 95 of the Act to stay the operation of the order dated 27.12.2007
pending disposal of the appeal. The miscellaneous petition has been filed on the ground that the impugned order is contrary to the facts on record and
the provisions of law. The balance of convenience is in favour of the Appellant. The Appellant would be put to irreparable loss if the order is not
recalled and remanded back to the Registrar for fresh hearing. In view of the above, the impugned order be stayed.
The notice sent to the first Respondent was served for the hearing on 21.05.10 but none appeared for the first Respondent. We therefore set the
Respondent ex parte, and heard the Petitioner.
The learned Counsel for the Petitioner contended that the impugned order was contrary to law and was erroneously passed. The other contention
was that there was another opposition against the same application and hence the impugned order ought to be stayed. The counsel relied on two
Judgments 2004 (29) PTC 614 (IPAB) Sona Tea House v. Sona Spices Private Limited and Anr. and 2002 (25) PTC 198 (Delhi) (DB) -Osram
Gesellschaft Mit bescharankter Haftung v. Shyam Sunder and Ors. The first judgment was filed in support of his contention that when two oppositions
were filed against one application, they are to be heard together. The second judgment was relied on to decide the matter on merits of the main
appeal.
We have heard the counsel and have gone through the pleadings. The issue that is to be decided is to stay the operation of the impugned order
pending disposal of the appeal. We do not find any plea as to one another opposition was pending against the same application in the miscellaneous
petition or any mention of the same in the impugned order. In such case, the judgment of this Board relied on by the Petitioner has no relevance at this
stage. In the opposition proceedings, the application for registration has been refused and the opposition is allowed and so we do not find it necessary
to stay the operation of the impugned order. The Petitioners are not at a loss as the common law right is always available to them.
We do not find any merit in the miscellaneous petition and is therefore dismissed without costs.