Delhi High Court - Orders
Dabur India Ltd vs The Registrar Of Trade Marks & Anr on 30 April, 2024
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~32
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.A.(COMM.IPD-TM) 8/2024
DABUR INDIA LTD ..... Appellant
Through: Ms. Akanksha Singh, Mr. Manish
Kumar Mishra and Ms. Shruti
Manchanda, Advocates.
versus
THE REGISTRAR OF TRADE MARKS & ANR. ..... Respondents
Through: Mr. Nidhi Raman, (CGSC) with Mr.
Zubin Singh, Advocates for R-1.
Ms. Nidhi Raman, CQSE with Mr.
Zubin Singh, Advocates for
Respondent (Registrar of Trademark).
Mr. Summit Aggarwal & Ms.
Harshita, Advocate for respondent no.
2.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 30.04.2024
1. The present appeal under Section 91 of the Trademarks Act, 19991 challenges order dated 11th October, 2023,2 passed by registrar of trademarks, whereby Appellant's trademark application no. 4584372 for registration of the label mark/packaging "ODONIL MYSTIC 1 The Act 2 Impugned Order This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 21:36:15 ROSE"/ ,3 has been deemed to be 'abandoned' on the ground of non-filing of counter statement, by the Applicant/Appellant, within the prescribed time from the date of notice of opposition.
2. Counsel for the Appellant argues that the Appellant was never served with the notice of opposition and therefore, the Impugned order whereby their application has been deemed to be abandoned is erroneous and deserves to be set aside. He explains that the Form TM-A [Temp.Ref. No:
4599476] lists the email ID for service as '[email protected],' but on acceptance and publishing of the advertisement, the email id was recorded as '****[email protected]'. This apparent discrepancy lead to non-service of the opposition notice. Counsel for Trademark registry/ Respondent No. 1, on instructions, states that as per the records of the trademark registry, the email was sent to [email protected], however, there is no acknowledgment of receipt of email from the Appellant/Applicant.
3. On the other hand, Mr. Summit Aggarwal, counsel for Respondent No. 2, submits that there is no error in the Impugned order. He argues that as per rules, the Appellant is deemed to be served on the email address mentioned. He supports this claim by arguing that the Appellant has not disputed receipt of the final order passed by the Registrar which was also dispatched to them through email. Therefore, the email ID in the records of 3 Subject Marks This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 21:36:15 the Trademark registry is correct and thus Appellant's application has correctly been deemed to be abandoned.
4. In the opinion of the Court, the facts outlined above clearly indicate an error on the part of the Trademark Registry in communicating the notice of opposition. There is a manifest discrepancy in recording the email ID of the Applicant/Appellant. The Form TM-A [Temp.Ref. No: 4599476] lists the email ID for service as '[email protected],' but upon acceptance and publication of the advertisement, the email was recorded as '****[email protected]'. This discrepancy led to the non-service of the notice of opposition, fundamentally undermining due process. Furthermore, as per Trademark registry/ Respondent No. 1, notice of opposition was purportedly sent to the email address '[email protected],' which belongs to the counsel for Respondent No. 2. They have no record of dispatch of email to the Appellant and thus the Applicant/Appellant not receiving the notice. The mere fact that the Applicant received the final rejection order from the Trademark Registry does not mitigate the fact that the notice of opposition was not properly served.
5. Service of notice is a fundamental requirement that ensures an applicant has a fair opportunity to respond to opposition proceedings. Therefore, the Impugned order, deeming the Appellant's application to be abandoned, is erroneous and cannot stand. The principles of natural justice and fair play require that the Applicant be given an opportunity to contest the opposition, which was denied due to procedural lapses by the Registry. Thus, the order is liable to be set aside.
6. In the light of the above, the present Appeal deserves to be allowed and accordingly the following directions are issued:
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 21:36:16 i. The Impugned order dated 11th October, 2023 is set aside. ii. Applicant's application no. 4584372 and the Respondent No.2's opposition no. 1196394 are restored to their original number. iii. The trademark registry shall serve the copy of the notice of the opposition within a period of one week from today on the email Id [email protected]. The Applicant/Appellant shall be entitled to file a response to counter statement thereto within time permissible as per rules.
7. Needless to state, the Court has not made any comments on the merits of the case.
8. The appeal stands allowed in the above terms.
SANJEEV NARULA, J APRIL 30, 2024/da This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 10/05/2024 at 21:36:16