Delhi High Court - Orders
Hindustan Syringes And Medical Devices ... vs The Senior Examiner Of Trade Marks, ... on 22 February, 2022
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ C.A.(COMM.IPD-TM) 16/2022
HINDUSTAN SYRINGES AND MEDICAL DEVICES LTD.
..... Appellant
Through: Mr. Peeyoosh Kalra, Ms. V. Mohini,
Ms. Aarti Aggarwal, Advocates.
versus
THE SENIOR EXAMINER OF TRADE MARKS, DELHI
..... Respondent
Through: Mr. Kirtiman Singh, CGSC with Ms.
Sri Rupa Nag, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 22.02.2022 [VIA VIDEO CONFERENCING]
1. The present appeal filed under Section 91 of the Trade Marks Act, 1999 [hereinafter "Trade Mark Act"] impugns: (i) the Order dated 14th September, 2018 [hereinafter "impugned Order 1"] passed by the Respondent viz. Senior Examiner of Trade Marks whereby the Appellant's Trade Mark Application No. 2654034 in Class 10 for the trade mark -
"DISPOSAFE" was rejected, and (ii) the Order dated 19th March, 2020 [hereinafter "impugned Order 2"] whereby the Respondent dismissed the review petition filed by the Appellant.
2. The Appellant viz. Hindustan Syringes & Medical Devices Ltd. [hereinafter "HSMDL"] is a manufacturer and trader of medical and C.A.(COMM.IPD-TM) 16/2022 Page 1 of 5 surgical instruments and appliances, which have been launched under the trade mark "DISPOVAN"1 and "DISPOCANN"2 including its other variants.
3. Appellant/ HSMDL filed an application for registration of the trademark - "DISPOSAFE" in Class 10 on 03rd January, 2014 for "DISPOSABLE SYRINGES, NEEDLES, I.V. CANNULA, INFUSION SETS AND SURGICAL, MEDICAL, DENTAL, VETERINARY APPARATUS AND INSTRUMENTS, ARTIFICIAL LIMBS, EYES AND TEETH; ORTHOPEDIC ARTICLES, SUTURE MATERIALS.". The application was examined, and a First Examination Report ["FER"] dated 13th March, 2015 was issued by the Registrar of Trade Marks wherein, objection(s) were raised under Section 11 of the Trade Mark Act. Appellant submitted its reply thereto on 11th August, 2016. Hearing took place on 14th August, 2018 where no one appeared on behalf of the Applicant/ HSMDL and consequently, vide impugned Order 1 dated 14th September, 2018 - the application was rejected under Section 18(4) of the Trade Marks Act.
4. Aggrieved by the aforesaid - the Appellant filed a review against the said Order which was heard on 02nd September, 2019 and rejected vide impugned Order 2 dated 19th March, 2020.
5. Relevant portion of the impugned Order 2 reads as follows: -
"O R D E R 1 TM Application No. 456928.2
TM Application No. 1470277.C.A.(COMM.IPD-TM) 16/2022 Page 2 of 5
An application for registration of trade mark consisting of word "
DISPOSAFE" was filed by the aforesaid Applicant under application No 2654034 in respect of applied goods included in Class - 10. The application was examined and examination report containing the objections to the acceptance of application for registration of trade mark was communicated to the Applicant. On the request of the Applicant, a hearing was fixed in this matter. Eventually on 14 August 2018, the application came up before me for hearing and the order was passed accordingly.
The present petition on form TM-M has been filed for review of the order dated 14 September 2018.
The above said review petition came up for hearing before me on 02/09/2019. The Ld. Counsel for the Petitioner made his oral submission in support of the filed Review. Upon perusing the statement of case filed in the matter and after hearing the Ld. Counsel submissions in support of the Review. It is observed that the filed Review is not with respect to any error or mistake occurred in the Refusal Order dated 14/09/2018 but the same has been filed with respect to the reviewing of the Refusal order on merits.
Further the ld. Counsel for the Petition during his submissions also could not highlight any error and/or mistake in the refusal order and made submission with respect to challenging the merits of the refusal order passed, which is not permissible under the settled principle of laws. Hence the present Review Petition questioning the merits of the refusal order dated 14/09/2018 stand.
Hence the Review Petition filed is dismissed.
The request on form TM-M is accordingly Refused."
6. Mr. Peeyoosh Kalra, counsel for Appellant/ HSMDL relies upon a communication dated 18th March, 2019 written by the erstwhile counsel for the Appellant (viz. Das Associates) stating that they had not received any intimation from the Respondent by post/ e-mail informing them about the next date of hearing i.e., 14th August, 2018. He submits that since there was no intimation or knowledge of the next date of hearing; the erstwhile agent was unable to appear on the said date which led passing of impugned Order
1. Mr. Kalra further submits that this fact was brought to the notice of the Trade Marks Registry in the Review Petition dated 26th April, 2019 filed by C.A.(COMM.IPD-TM) 16/2022 Page 3 of 5 HSMDL, but not considered.
7. Mr. Kirtiman Singh, Central Government Standing Counsel for the Respondent has also been heard. Mr. Singh states that due to non- appearance of the counsel for the Appellants, the Respondent rightly rejected the TM application vide impugned Orders.
8. The Court has considered the submissions advanced by the counsel for the parties.
9. The impugned Orders do not take note of material facts and circumstances of the instant case. In the opinion of the Court, the Appellant's TM application has been refused by the Respondent without affording adequate opportunity to the Appellant to make out its case. Vide impugned Order 2 - the submission of the Appellant for non-receipt of hearing notice of hearing has neither been discussed nor taken note of. Therefore, the said violation of procedural fairness ex-facie vitiates the impugned Orders thereby warranting interference by this Court.
10. In light of the foregoing, the impugned Orders are set-aside and the matter is remanded back to the Respondent.
11. The Respondent is directed to decide the application afresh, after affording a fair and reasonable opportunity of hearing to the Appellant within reasonable time frame, in accordance with law. All the rights and contentions of the parties are left open.
C.A.(COMM.IPD-TM) 16/2022 Page 4 of 512. In the above directions, the present appeal is allowed in the above terms and disposed of.
SANJEEV NARULA, J FEBRUARY 22, 2022 Pallavi C.A.(COMM.IPD-TM) 16/2022 Page 5 of 5