Case: Citicorp Diners Club Inc. Chicago, USA Vs Eastern Wines, Bombay. Trademark Tribunal
| Counsel | For Appellant: Mr. P.B. Pai, Advocate and For Respondents: Mr. M.R. Nair, Advocate |
| Judges | T. R. Subramanian, DRTM |
| Issue | Trade & Merchandise Marks Rules, 1959 - Rule 53(2) |
| Citation | 1989 (9) PTC 270 (Reg) |
| Judgement Date | October 09, 1989 |
| Court | Trademark Tribunal |
Judgment:
T. R. Subramanian, DRTM
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The proceedings relate to the review petition filed on 27.2.1989 by the opponents to review the order passed by me on dated 18.11.1988 treating the opposition as abandoned under Rule 53(2) of the Trade and Merchandise Marks Rules, 1959. In the statement of grounds for review accompanying TM-57 the opponents have stated inter alia:
That the opponents filed Opposition No. BOM-6404 to Application No. 399877 and the same was taken on record. Thereafter the counterstatement was filed by the applicants and the opponents received a copy of the same from the Trade Marks Registry on 23rd October, 1986. The opponents had requested for extension of time to file their evidence under Rule 53 and extension of time upto 23rd August 1987 was granted to then. The opponents had thereafter made a request on form TM-56 dated 21.11.1988 for extension of time upto December 23rd 1988 to file their evidence. In the mean time, the Trade Marks Registry has issued an order dated 18.11.1988 treating the opposition as abandoned under Rule 53(2) of the Trade and Merchandise Marks Rules, 1959. The opponents had no intention to abandon the opposition and the failure to file evidence by them in support of opposition was due entirely to circumstances beyond their control.
That as the opponents have been taking extension of time to file evidence periodically. It was clear that they were keen on proceeding with the opposition and that Rule 53(2) operates only if the opponents take no action under Rule 53 (1) and also if the Registrar does not otherwise direct.
That the Deputy Registrar should have directed the opposition to proceed further instead of treating it as abandoned. Considering the fact that the applicants Mark is only proposed to be used and in the interest of the purity of the Registrar and in the public interest.
That the order-dated 18.11.88 to be set aside and the opposition be restored with an opportunity granted to the opponents to file their evidence in support of the opposition.
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The above review petition was forwarded to the applicants for their comments. The applicants in their comments have stated that the review petition is time-barred and so should be refused in-limine. They had further submitted that the opponents are confusing the Order dated 18.11.1988 which was an order under Section 97(b) with a decision under Section 97(c) of the Act. Under Section 97(c) of the Act, a review lies in respect of a decision and not an order. As the matter was directed to be proceeded with by reasons of the operation of Rule 53(2)...
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