M.P. No. 199/2009 in ORA/150/2007/TM/CH. Case: Prime Plast Vs Prime Tele Extrusions Ltd.. Intellectual Propery Appellate Board Cases

Case NumberM.P. No. 199/2009 in ORA/150/2007/TM/CH
Party NamePrime Plast Vs Prime Tele Extrusions Ltd.
CounselFor Appellant: K.K. Sharma and For Respondents: S. Balachandran
JudgesK.N. Basha, J. (Chairman) and Sanjeev Kumar Chaswal, Member (T(Trade Marks))
IssueIntellectual Property Rights
Judgement DateMarch 06, 2015
CourtIntellectual Propery Appellate Board Cases

Order:

K.N. Basha, J. (Chairman)

  1. This Miscellaneous Petition No. 199 of 2009 filed in ORA/150/2007/TM/CH, is preferred by the applicant seeking for the relief of taking additional documents on record in support of application for rectification.

  2. The applicant has stated in his application that the matter was listed for hearing on 23/07/2009. It is further submitted that the applicant had filed application for registration of the trade mark "PRIME" under application No. 722255 in class 17 and in view of the objection raised by the Registrar of Trade Marks, the applicant had withdrawn the said application and filed another application under No. 1248901 in class 17 on 11/11/2003. The said application was opposed by the present respondent but the same was dismissed by the Registrar on 18/02/2009 and the said order was not challenged by the respondent by filing any appeal. Therefore, it is submitted by the applicant that the said order has become conclusive and binding upon the parties. As the said order was passed subsequent to the registration of the impugned trade mark the petitioner has not enclosed the above said order along with the original application filed for rectification.

  3. It is also stated in the petition that the infringement suit was filed by the applicant/petitioner herein and in the said suit in C.S. No. 948 of 2003 and O.A. Nos. 988 and 989 of 2003, the Hon'ble High Court of Madras granted temporary injunction against the respondent herein restraining the use of the impugned trade mark "PRIME" pending disposal of the suit as per the order dated 28/03/2006. Therefore, it is stated that those attachments are relied by the applicant herein and they are not produced earlier and they may be taken on record.

  4. The respondent filed counter to the present Miscellaneous Petition denying the averments of the petitioner. It is stated that the petitioner has suppressed the fact of pendency of the opposition proceedings at the time of filing the original application and such being the position they cannot produce the order of the said proceedings passed by the Registrar of Trade Marks as an additional document in this proceeding. It is further stated that even in respect of the Hon'ble High Court of Madras order, the same was passed on 28/03/2006 and the appeal order in OSA No. 37 of 2007 was passed in February, 2007 prior to the filing of ORA and as such the petitioner cannot produce the same at this stage.

  5. Mr. K.K. Sharma, the...

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