Prosound Products, A Partnership Firm, Duly Registered Under The Provisions Of The Indian Partnership Act, 1932 vs Prosound Inc And The Registrar Of Trade Marks, Trade Marks Registry

S. Usha, J

Miscellaneous Petition No. 142/2009 filed by the Respondent in the rectification application to reject to the counter statement filed by the Petitioner

and the annexure filed along with the same or in the alternative to grant liberty to the Respondent to rebut the reply affidavit along with the documents.

The applicant filed the instant application for rectification along with documents marked as Exhibit A to J where no affidavit in support of the same

has been filed. Rule 8 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 documents along with the rectification petition has to be

filed in the form of affidavit. As per the Rule if no affidavit in support is filed the documents - exhibits cannot be taken on record as it is in violation of

the rules. The reply to the counter statement cannot be taken on record as it is beyond the time granted. Even otherwise, the applicant has filed along

with the reply to the counter statement voluminous documents. It is well settled principle of law the reply can only be to the extent of rebutting the

counter statement or written statement. All the documents relied on and filed along with the reply to the counter were in the provisions of the

Respondents at the time of filing of the application for rectification. These documents have been filed at this stage only to deprive the Petitioner to

rebut the same. The Respondent ought to have filed miscellaneous petition seeking leave of this Board to take on record the additional documents.

On perusal of the index it is seen that those documents were ready by 20.01.2009, but has been filed after a long delay. The Respondent has filed

forged and fabricated documents. The instant reply is beyond the rules and regulations of this Board. It is submitted that in case this Board allows the

same to be taken on record the Petitioner may be granted liberty to file rebuttal evidence.

The applicant filed their reply denying the allegation made in the miscellaneous petition. The applicant submitted that the counter statement along

with the affidavit of evidence has been filed as per the Intellectual Property Appellate Board (Procedure) Rules. The miscellaneous petition is

baseless and false and is not maintainable in law and on facts. The reply to the counter statement was filed well within time and there is no delay. The

documents filed are not fresh evidence, they have sought leave to file as and when available in the application for rectification. The documents are

certified copies of the registration certificate and bills and invoices supporting the sales figures given in

Both the counsel reiterated what was stated in the miscellaneous petition and reply respectively.

We have heard the counsel and have gone through the documents.

The Respondent has filed reply to the counter statement along with the evidence as per Rule 11 of the Intellectual Property Appellate Board

(Procedures) Rules, 2003 in our opinion. That apart, the evidence filed along with the reply to the counter statement are only certified copies of the

certificates and invoices which in considered new is nothing new. We do not find any base in the argument of the Petitioner that those documents

were in the custody of the Respondent while filing the rectification application and to file the same at this belated stage is only to deprive them of filing

a reply. In our opinion, the Petitioner has not made out a case to allow the miscellaneous petition. Therefore the miscellaneous petition is dismissed

with no order as to costs.