Case: Biddle Sawyer Private Limited, Bombay Vs Harold Pharmaceuticals, Ahmednagar. Trademark Tribunal
| Counsel | For Appellant: Mr. Sunil Krishna, Adv. and For Mr. Sunil Krishna, Adv. and For Respondents: Mr. M. R. Nair, Adv. |
| Judges | K. C. Kailasam, JRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Section 97(c); Trade and Merchandise Marks Rules, 1959 - Rules 53(2), 115; Civil Procedure Code - Order 47 Rule 1 |
| Citation | 1989 (9) PTC 254 (Reg) |
| Judgement Date | September 19, 1989 |
| Court | Trademark Tribunal |
Judgment:
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This will dispose of the review petition on Form TM-57 dated 15.6.1987 filed by Biddle Sawyer Private Limited, 25, Dalal Street, Bombay-400 001 (hereinafter referred to the as " the Opponents"). The petitioner seek review of Registrar's Order dated 24th March, 1987, by which the opposition was treated as abandoned by reason of operation of sub-rule (2) of Rule 53 of the Trade & Merchandise Marks Rules, 1959. Shri Sunil Krishna, Advocate appeared for the Petitioner/Opponents and Shri M.R. Nair, Advocate appeared for Harold Percy Budden Trading as Harold Pharmaceuticals, Ahmednagar (hereinafter referred to as "the Applicants").
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Briefly the facts are -- Application No. 399946 for the registration of trade mark "RAROCID" was advertised before acceptance in the Trade Marks Journal No. 885 dated 16th April, 1986. The aforesaid Opponents filed a notice of opposition on various grounds. The applicant filed his counter-statement denying the allegation contained in the notice of opposition. A copy of the counter-statement was forwarded to the Opponent's attorneys by the Trade Marks Registry letter dated 7.11.1986, inviting their attention to Rule 53 of the Trade & Merchandise Marks Rules, 1959. It is also made clear to the Opponents that if no evidence in support of opposition is left at the Registry, or if no intimation that the Opponents' do not desire to adduce any evidence is sent to the Registry and to the Applicant within 2 months from the receipt of the letter, the opposition will be deemed to have been abandoned vide Rule 53(2). In the absence of any evidence filed by the Opponents and in the absence of a request for extension of the prescribed time, the opposition was treated as abandoned by operation of Rule 53(2) of the Trade & Merchandise Marks Rules and an order as to costs was passed. It is this order, which is the subject of review in these proceedings.
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In support of the review application, Opponents submit that they received a "without prejudice" letter dated 20.10.1986 from the Trade Marks Attorneys of the Applicants requesting them to withdraw the opposition on certain terms and condition which the Opponents were considering, that the principal Officer of the Company went on business trip and on leave and that therefore there was omission to file evidence in support of opposition or seek extension of time within the prescribed period.
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On behalf of the applicant, two main objections were raised, namely, that the...
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