Case: Biofarma, Neuilly-Sur-Seine, France Vs Triokaa Laboratories, Ahamedabad. Trademark Tribunal

Party NameBiofarma, Neuilly-Sur-Seine, France Vs Triokaa Laboratories, Ahamedabad
CounselFor Appellant: Mr. Shyam Sunder Iyer instructed by M/s Remfry and Son, New Delhi, Advocate and For Respondents: Mr. R.R. Shah, Advocate
JudgesH. P. Shukla, ARTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 21(1), 97(c), 101
Judgement DateApril 23, 1990
CourtTrademark Tribunal

Judgment:

H. P. Shukla, ARTM.

  1. These proceedings relate to the opponents/petitioners Review Petition dated 15.5.1989 filed on 18.9.89. The said Review Petition was filed to review the order of the Registrar dated 16.8.89 communicated to the opponents under Office letter No. TOP/3374 dated 16.8.89, which briefly reads as under:

    "I am directed by the Registrar of Trade Marks to inform you that the notice of opposition filed by you cannot be taken on record as the fee of Rs. 270/- is no paid for the same, the application being proceeded for registration".

  2. The main grounds for the review as stated in the Review Petition reads as under:

  3. The Petitioner's said Attorneys were unaware that the documents were unaccompanied by the fee till intimation vide the above letter.

  4. Section 21(1) of the Trade and Merchandise Marks Act, 1958 specifies that the notice of opposition must be filed within three months from the date of advertisement of the application in the Trade Marks Journal. Furthermore, this period is extendible by one month by an application to the Registrar in the prescribed manner.

  5. The Trade & Merchandise Marks Act, 1958 is silent on condonation of delay in filing documents beyond the limitation period. Under the provision of Section 97(1) the Registrar has the powers of a Civil Court in relation to certain proceedings. To fulfill a lacuna in the Trade & Merchandise Marks Act, 1958 it is, therefore, clear that the legislators intended that the civil law be resorted to.

  6. Section 5 of the Limitation Act lays down that late filing of any appeal or application documents may be condoned on just and sufficient cause being made out.

  7. It is a well established principle or law that a litigant ought to be dealt with sympathetically so that no prejudice is caused to him by the mistake of a lawyer and that mistake of lawyer can constitute sufficient cause for condoning delay.

  8. The petitioner instructed its attorneys in good faith and they filed the notice of opposition well within the prescribed time. The fee was not paid for reasons beyond the Petitioner's control. The petitioner cannot be penalised for a mistake committed by its attorney's office.

  9. In the interests of natural justice, equity and fair play the Petitioner respectfully prays that the inadvertent error committed by said attorneys be condoned and the notice of opposition filed on 23.5.1989 be taken on record.

  10. The matter came up for hearing before me on 16.4.90 when Mr...

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