Dindayal Gupta, Trading As Bhawani Textiles vs R.G. Oswal Hosiery Industries And The Registrar Of Trade Marks, Trade Marks Registry

S. Usha, Technical Member

1 . This Miscellaneous Petition seeks to reject the rectification application or to call upon the applicant to amend the rectification application in

compliance with the provisions of the Act.

2 . The petitioner herein (respondent No. 1 in the main application) filed this miscellaneous petition on the ground that a single application cannot be

filed for cancellation of two registered trade marks as it was wrong and contrary to the provisions of the Trade Marks Act, 1999 and Trade Marks

Rules, 2003 and to the provisions of the Intellectual Property Appellate Board Rules, 2003. The marks were registered in the year 1968 and 1973,

respectively, and that the cause of action arose at two different dates. As per the provisions of the Trade Marks Act, 1999, there is a new fees

structure provided for each application. The rectification application is contrary to the provisions of Sections 46, 56, 107 and 108 of the Trade Marks

Act, 1999.

The respondent No. 1 (applicant in the main application) filed their counter stating that the miscellaneous petition is not maintainable as this objection

has been raised in the counter statement to the main application and to file this instant miscellaneous petition at this belated time is only to delay the

matter. The rectification application has been filed before the Hon'ble High Court of Delhi in accordance with the provisions of the Trade &

Merchandise Marks Act, 1958. As the parties are same, the trade marks are same, the evidence relied on by both the parties are common and that

the provisions of Order 2 Rule 3 of Code of Civil Procedure 1908 permits to join all the causes of action and to file it as a single application. This

Appellate Board is not bound by the provisions of the Code of Civil Procedure but shall be guided by the principles of natural justice and that this

Board shall regulate its own procedure. The instant miscellaneous petition is therefore frivolous and baseless.

4 . We have heard Shri Ajay Sahani, learned Counsel for the applicant and Shri Saurabh Kapoor, learned Counsel for the respondent No. 1 in the

Circuit Bench Sitting at New Delhi on 20th January, 2009.

The application has been transferred to this Appellate Board in accordance with the provisions of Section 100 of the Trade Marks Act, 1999. As

per the provisions of Section 100 of the Act, the Board shall proceed with the matter either de novo or from the stage it was so transferred. The

rectification application has been filed before the Hon'ble High Court, Delhi and the same has been admitted by the said Court. Now at this stage, we

cannot go into the maintainability of the application.

6 . Section 92 of the Trade Marks Act, 1999 is very clear that this Appellate Board shall not be bound by the procedure laid down in the Code of Civil

Procedure, 1908, but shall be guided by the principles of natural justice and subject to the provisions of the Act and the Rules made thereunder and it

shall have powers to regulate its own procedure. The application has been filed before the High Court of Delhi and the same has been admitted as per

the provisions of Order 2 Rule 3 of Code of Civil Procedure, 1908 as that Code is applicable to High Courts. We, therefore, cannot go into the aspect

as to whether two separate applications are to be filed with separate fees. The contention of the Counsel for petitioner was answered by the

respondent No. 1 that necessary fees for two applications as per the High Court Fees Rules was paid and on verification we were also satisfied. We

find that the petitioner has raised this as a preliminary issue in the counter statement to the application and to file this petition after such a long delay

only shows the intentions of the petitioner to delay the proceedings.

We are of the view that no case has been made out for allowing the miscellaneous petition. We therefore dismiss the miscellaneous petition with no

order as to costs. We direct the Registry to post the main matter during the next Circuit Bench at New Delhi.