Delhi High Court - Orders
Mr. Manish Agarwal vs The Regisrar Of Trade Marks And Ors on 6 October, 2020
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
Digitally Signed By:SINDHU
KRISHNAKUMAR
Signing Date:07.10.2020 15:24:23
$~16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3434/2020 & CM APPLs. 12180-83/2020
MR. MANISH AGARWAL ..... Petitioner
Through: Mr. Deepankar Mishra, Mr. Mohit
Goel and Mr. Siddhant Goel
Advocates.
versus
THE REGISRAR OF TRADE MARKS AND
ORS. ..... Respondents
Through: Mr. Harish Vaidyanath Shankar,
CGSC for R-1, 3 and 4
Mr. Amarjit Singh, Advocate for R-2
(M-9810054311)
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 06.10.2020
1. This hearing has been held through video conferencing.
2. The Court has heard submissions in part in this matter and also perused the affidavit filed on behalf of the Registrar of Trade Marks. The order dated 10th June, 2020 had specifically directed the Registrar of Trade Marks to file an affidavit in the following terms:
"4. The Court has perused the records. It seems there is some mis-match as to the actual documents, which were filed on 5th August, 2019 as the Petitioner states that only a Power of Attorney was filed, but Respondent No. 2 submits that the evidence was filed on the said date.
5. In view of this position, the Registrar of Trademarks is directed to file an affidavit giving the exact details of the dates when the evidence in support of the oppositions was filed in respect of Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 3434/2020 Page 1 of 5 Signing Date:07.10.2020 12:06 Digitally Signed By:SINDHU KRISHNAKUMAR Signing Date:07.10.2020 15:24:23 all four of the Petitioner's trademark applications. The Registrar of Trademarks shall produce on record a certificate from the IT Department as to what was the exact document filed on 5 th August, 2019. Let the affidavit be filed within four weeks.
6. It is the further case of the Petitioner that on th 26 February, 2020 when the matter was taken up before the Registrar of Trademarks, an order was passed directing the Respondent No. 2 to supply copies of the evidence to the Petitioner again. It is submitted that the said order has not been uploaded by the Registrar of Trademarks. The Registrar of Trademark is directed to upload the order dated 26th February, 2020 within a week."
3. The affidavit, which has been filed, merely seeks to place on record a certificate of the Systems Administrator. The affidavit reads as under:
"8. This Hon'ble Court has directed the Respondent to file an Affidavit giving the exact details of the dates when the evidence in support of the oppositions was filed in respect of all four of the Petitioner's trademark Applications. The Respondent has also been directed to produce a certificate from the IT department as to what was the exact document filed on the 5th of August 2019 [Para 5 of Order dt. 16.6.2020]
9. Copies of the Documents as filed, with dates, alongwith the certificate of Sh. Chandrakant S. Uchil, Assistant Registrar of Trademarks and GI, Mumbai, also working as System Administrator for Trade Mark Registry Automation System are filed in respect of all four Applications as Annexures R-4, 5, 6 and 7 respectively."
4. Thus, insofar as the details of the dates, when the evidence in support of the opposition was filed in respect of all four of the Petitioner's trade Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 3434/2020 Page 2 of 5 Signing Date:07.10.2020 12:06 Digitally Signed By:SINDHU KRISHNAKUMAR Signing Date:07.10.2020 15:24:23 mark applications are concerned, no details have been forthcoming by the official concerned.
5. A perusal of the Certificate of the Systems Administrator also shows that on 5th August, 2019, one page each is stated to have been uploaded, described as Evidence Affidavit under rule 47 and as Annexure 1 under Rule 47, whereas the Annexure to the said Certificate is a Power of Attorney running into two pages and a purported Evidence Affidavit of Mrs. Kalpana Umakanth under Rule 45, running into 12 pages, which is stated to have been notarised on 2nd August, 2019.
6. The Certificate of the Systems Administrator clearly states that only two pages were uploaded and hence there is a doubt as to whether the said evidence was uploaded on the said date. Insofar as the physical copies are concerned, the physical copy was admittedly received only on 13th August, 2020, with a covering letter of 7th August, 2020. The submission of ld. counsel for the Petitioner is that under Rule 45 of the Trade Marks Rules, 2017 (hereinafter, 'the Rules'), only two months' time is available to the opponent to file the evidence in respect of the opposition and the said period is not extendable in view of Rule 45(2). He submits that Section 131 of the Trade Marks Act, 1999 (hereinafter, 'the Act') relating to extension of time, would not be applicable in this case in view of the specific provisions in Section 21(4) of the Act and Rule 45 of the Rules.
7. However, Mr. Amarjit Singh, ld. counsel appearing for the contesting Respondent submits that the only mistake committed by the Respondent was that the Rule 45 evidence was described as Rule 47, which is at best a clerical error. He submits that the Certificate, though found to be wanting, there is no doubt that the evidence by way of affidavit was filed on 5 th Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 3434/2020 Page 3 of 5 Signing Date:07.10.2020 12:06 Digitally Signed By:SINDHU KRISHNAKUMAR Signing Date:07.10.2020 15:24:23 August, 2019. In respect of Section 131 of the Act, it is his submission that the said section would apply as the time period is not prescribed in the Act, but in the Rules and in any event, even if there is a delay, the same can be condoned.
8. Mr. Harish Vaidyanath Shankar, ld. CGSC submits that the Trade Mark Registry may be permitted to file a detailed affidavit in the matter.
9. It is noticed that even as on today, the evidence purported to have been filed under Rule 45/Rule 47 by the Respondent/Opponent is not available online on the TMR's website. This Court is of the opinion that the affidavit of the Registrar of Trade Marks is clearly not in compliance with the order passed by this Court on 10 th June, 2020. It is the duty of the Registrar of Trade Marks to comply with the order both in letter and in spirit. The dates on which the exact evidence was filed by the opponent had to be clarified in the affidavit, which the affidavit clearly does not. Under these circumstances, it is deemed appropriate to direct that the affidavit shall be filed by Shri. Hoshiar Singh, the Head of Trademark Registry, Delhi office, after enquiring into the matter fully, within a period of two weeks giving the following specific details:
a) Whether any documents were uploaded on behalf of the Opponent in all four oppositions under Rule 45, and if so on which date and how many pages were there?
b) Whether any documents were uploaded on behalf of the Opponent under Rule 47 in all four oppositions, and if so on which date and how many pages were there?
c) Whether the evidence by way of affidavit of Mrs. Kalpana Umakanth running into 12 pages in all the four opposition Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 3434/2020 Page 4 of 5 Signing Date:07.10.2020 12:06 Digitally Signed By:SINDHU KRISHNAKUMAR Signing Date:07.10.2020 15:24:23 proceedings was uploaded online on 5th August, 2019 or not and if so what is the proof thereof?
d) Reason, if any, as to why the Certificate issued by Mr. Chandrakant S. Uchil, Assistant Registrar of Trade Marks & GI, Mumbai working as System Administrator describes the number of pages uploaded on 5th August, 2019 as being one page each and not the 12 pages which are annexed with the said Certificate.
e) The provision of law under which purported online filing on 5th August, 2019 has been considered by the Trade Marks Registry.
10. Let the affidavit of Mr.Hoshiar Singh, Head of the Trade Marks Registry, Delhi office, be filed within two weeks. List on 5th November, 2020.
PRATHIBA M. SINGH, J.
OCTOBER 6, 2020 dj/A Signature Not Verified Digitally Signed By:PRATHIBA M SINGH W.P.(C) 3434/2020 Page 5 of 5 Signing Date:07.10.2020 12:06