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Judgment
 S. Usha, J
Appeal arising out of the order dated 12.04.2005 rejecting the opposition bearing No.AMD-165076 as time barred. The respondent herein filed an
application for registration of the trademark 'PRODIEM' under No. 1095847 in Class 5 on 16. 04.2002. The user claimed was since 16.04.2002. The
said application was advertised in the Trade Marks Journal No. 1306 dated 04.11.2003 which was made available to the public on 19.11.2003. The
appellant herein filed their notice of opposition along with a Form TM-44 for extension of time on 29.02.2004.
2 . The Assistant Registrar of Trade Marks treated the opposition bearing No.AMD- 165076 as time barred and rejected the same.
The appellant being aggrieved by the said order, filed this appeal praying that the notice of Opposition be taken on record and to proceed with the
proceedings in accordance with law, setting aside the impugned order.
The only contention of the counsel for the appellant was that they were not aware as to which Act, whether the 1958 Act or 1999 Act, was to be
followed. Therefore, as per the Old Act, i.e., 1958 Act, they had filed the notice of opposition along with the request for extension of time after the
three months' period. He also submitted that the party should not be made to suffer for the fault of the counsel.
We have heard and considered the arguments of the counsel for the appellant. We are unable to accept this contention. In the instant case, we
have to follow the Trade Marks Act, 1999 and the rules framed thereunder and cannot go beyond that.
It is profitable to extract the relevant provisions of the Act and Rules.
Section 21(1) of the Trade Marks Act, 1999:
Opposition to registration. - (1) Any person may, within three months from the date of the advertisement or re-advertisement of an application for
registration or within such further period, not exceeding one month in the aggregate, as the Registrar, on application made to him in the prescribed
manner and on payment of the prescribed fee, allows, give notice in writing in the prescribed manner to the Registrar, of opposition to the registration.
Rule 47(6) of the Trade Marks Rules, 2002:
Notice of opposition:
(1) to (5) xxxxx
(6) An application for an extension of the period within which a notice of opposition to the registration of a trade mark may be given under sub-section
(1) of section 21, shall be made in Form TM-44 accompanied by the fee prescribed in First Schedule before the expiry of the period of three months
under sub-section (1) of section 21.
7 . Section 21 of the Act provides that any person may file a notice of opposition within three months from the date of advertisement or within such
further period not exceeding one month in the aggregate as the Registrar may allow on an application for extension.
8 . Rule 47(6) of the Trade Marks Rules reads that an application for extension of period as per sub-section (1) of Section 21 shall be in Form TM-44
before the expiry of the three months' period.
9 . Section 21 of the Act which provides for three months' time for filing notice of opposition, also provides for extension of one month period in the
aggregate on application before the Registrar in the prescribed manner. The prescribed manner is, what is provided under Rule 47(6) of the Rules.
Therefore, it is clear that the notice of opposition shall be filed within three months from the date of advertisement, and if extension of time is sought,
the same shall be filed before the expiry of three months. The extension of period will only be for one month and not exceeding further. The Registrar
has the power to extend the time for one month that too, on application for extension of time filed with the prescribed fee within the three months'
period.
In the case on hand, the trade mark was advertised in the Trade Marks Journal on 04.11.2003 which was made available to the public on
19.11.2003. The appellant ought to have filed the notice of opposition on or before 19.02.2004. The application for extension of time also ought to have
been filed on or before the said date. As per the impugned order, the appellant had filed the notice of opposition along with the application for
extension of time on 03.03.2004. Even as averred by the appellant in the Memo of Appeal, it entered into opposition on 29.02.2004, which was also
after the prescribed time. The appellant's contention was that they were not aware as to which Act, whether the 1958 Act or the 1999 Act, would
have to be followed and they filed the notice of opposition along with the request for extension of time after the three months' period, as per the 1958
Act and hence, the party should not be made to suffer for the fault of the counsel. As already observed, the said submission is not acceptable and the
appellant should have filed the notice of opposition along with application for extension of time within three months period, i.e., on or before
11.2004. If the Act provides for a specified time, it has to be followed in compliance of the same, and the requirements of the provision cannot be
relaxed.
The appellant in this case is not remediless, but the appellant has only lost its case at the first stage.
When Section 21(1) of the Act states that it is to be done in a prescribed manner, then, the Rules follow. The Rule 47(6) of the Trade Marks
Rules is very clear wherein it is stated that the application for extension of time should be filed within the three months' period. In view of the above
reasons, we do not think it necessary to interfere with the impugned order. Consequently, the appeal is dismissed with no order as to costs.