Andhra Pradesh High Court - Amravati
Sarvasuddi Suryanarayana, vs The Union Of India, on 23 February, 2021
Author: R. Raghunandan Rao
Bench: R. Raghunandan Rao
HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO
WRIT PETITION No.11761 of 2020
ORDER:
The petitioner is a proprietor of M/s. Surya Foods, situated at Kapavaram Village, Biccavolu Mandal, East Godavari District. The petitioner which is involved in the manufacture of Tea powder under the brand name "Surya Priya Gold" had filed an application under the Trade Marks Act, 1999, for registration of his device Trade Mark "Surya Priya Gold" by application No.3017984 in Class 30. This application was published in Journal No.1869-0 dated 01.10.2018 whereby it would be open for any member of the public to oppose the said Trade Mark application within four months from the date of such publication. The 4th respondent filed a notice of Opposition recorded as Opposition No.969651 on 30.01.2019. The petitioner had filed his counter statement to the said opposition on 27.03.2019.
2. It is the contention of the petitioner that the counter statement of the petitioner was served on 4th respondent on 16.05.2019. However, the 4th respondent did not file any evidence affidavit within two months from the date of the service of the counter statement, as required under Rule 45 of the Trade Mark Rules. The petitioner submits that the Trade Mark Registry despite having sent the counter statement of the petitioner to the 4th respondent on 16.05.2019 had again sent the counter statement to the 4th respondent on 09.01.2020. When this came to the notice of the Trademark agent of the 2 RRR,J W.P.No.11761 of 2020 petitioner, the said agent had immediately forwarded an e-mail to the Trademark Registry on 04.03.2020 and 27.02.2020 alleging that the evidence affidavit required to be filed by the 4th respondent under Rule 45 has not been filed within the time frame prescribed and sought an enquiry in the irregularities.
3. The petitioner would also submit that even though the evidence affidavit is said to have been filed by 4th respondent on 02.03.2020, no such record was available when the agent of the petitioner had complained about the 2nd notice on 04.03.2020. It appears that the agent of the petitioner again forwarded an e-mail dated 22.06.2020 reiterating his contention that the record showing filing of the evidence affidavit by the 4th respondent on 02.03.2020 has been created and was done merely to grant time to the 4th respondent to file the evidence affidavit.
4. The petitioner records further communications between the petitioner and the Trademark Registry in relation to these issues. The complaint of the petitioner is that the Assistant Registrar of Trade Marks has taken the stand, in his communication on 25.06.2020 that on verification, of the mails sent data base records, it was noticed that the counter statement of the petitioner was not forwarded to the 4th respondent on 16.05.2019 and it was sent only on 09.01.2020 and that the 4th respondent had filed the Rule 45 evidence in support of opposition on 02.03.2020, which is within the prescribed time limit as per the Trademarks Act and Rules.
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5. In the circumstances, the petitioner has approached this Court for the issuance of a Writ of Mandamus declaring the action of the respondents 1 to 3 in serving the counter statement filed by the petitioner for a second time on the 4th respondent after eleven months of its filing, which is said to be complete violation of the provisions of the Trade Marks Act, 1999 and Trademark Rules, 2002.
6. The procedure set out in the Trademark Rules, 2017 is as follows:
The application for registration of a Trademark in respect of goods or services is to be made under Rule 23 along with the details required under Rule 23. The said application would be examined by the Registrar under Rule 33. If on consideration of the application the Registrar decides to accept the application for registration, he shall communicate such acceptance to the applicant and cause the application be advertised as provided under Section 20(1) of the Trademark Act read with Rule 39 of the Rules. After such advertisement, any person, who seeks to oppose the registration of a Trademark, can file a notice of opposition under Rule 42 with the Registrar, in accordance with the requirements of Rule 43. The applicant shall file his counter statement to the said notice of opposition under Rule 44. Thereafter, the opponent is required, under Rule 45(1), within two months from the service of a copy of the counter statement, to lead such evidence by way of affidavit in support of his opposition. If the opponent takes no action under Sub Rule 1 4 RRR,J W.P.No.11761 of 2020 within the time mentioned therein, he shall be deemed to have abandoned his opposition.
7. As can be seen from the above procedure, failure on the part of any opposing party to file an evidence affidavit under Rule 45 within two months of receiving the counter statement would preclude the said opposing party from offering any further opposition to the Trademark application of the applicant.
8. Sri Ashok V. Ram Kumar, learned counsel for the petitioner would submit that examiner of Trademark had issued a notice dated 03.12.2019 to the petitioner and 4th respondent, wherein it was stated that the counter statement of the petitioner was served on the 4th respondent vide e-mail dated 16.5.2019 and to show cause for explaining in person as to why the opposition should not be treated as abandoned under the said Rule and hearing on this issue was fixed on 08.12.2019. However, on that day when the matter was taken up, it was recorded that an order had already been passed in this matter on 20.11.2019 and communicated to the parties vide letter No.TOP/9932 and 9933 dated 14.12.2019. In this order passed on 20.11.2019 it was stated that a hearing was fixed on 18.11.2019 on the same issue and upon verification, it is noted that notice under Section 21(3) is not served on the opponent and in view of the same, a fresh notice has to be served on the opponent, inviting their attention to Rule 45 and opposition proceedings would have to proceed further as per rules.
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9. Sri Ashok V Ram Kumar, learned counsel for the petitioner would submit that the counter statement of the petitioner was in fact served on the 4th respondent on 16.05.2019 itself and the same is reflected in the notice of 03.12.2019. However, the official respondents with a view to help the 4th respondent had taken the stand that the counter statement was not served on 4th respondent on 16.05.2019. The 4th respondent had filed its counter affidavit stating that the 4th respondent did not receive the counter statement said to have been sent to it on 16.05.2019 and it was only when the show cause notice was received by the 4th respondent in November, 2019 that the 4th respondent became aware of these facts and had pointed out to the official respondents, that no such counter has been received by the 4th respondent.
10. Sri G.V.S.Jagannadharao, learned counsel appearing for the 4th respondent would submit that the writ petition itself is not maintainable as it involves complicated questions of fact which cannot be gone into by this Court while exercising its jurisdiction under Article 226 of the Constitution of India. He would further submit that the 4th respondent became aware of the filing of the counter only when the show cause notice was received in November, 2019 and not before. He would submit that the evidence affidavit required under Rule 45 of the Trademark Rules had been filed within the time stipulated under Rule 45 on 02.03.2020, as it is within two months from the receipt of the counter statement on 09.01.2020. In the circumstances, he submits that there are no 6 RRR,J W.P.No.11761 of 2020 merits in the writ petition and the same may be requires to be dismissed.
11. The 3rd respondent, who is the Deputy Registrar of Trademark has also filed his counter stating that even though the e-mail was sent on 16.05.2019 to the 4th respondent, the said mail did not go through due to technical problem and the same can be seen from the mail sent report which shows that the mail was not delivered to the 4th respondent. He would submit that the official respondents had initially operated on the belief that the mail had been received by the 4th respondent on 16.05.2019. However, upon verification, it was realised that the mail did not go through and a fresh mail with the counter statement attached was served on the 4th respondent only on 09.01.2020. In these circumstances, the contentions of the petitioner are incorrect and the writ petition would have to be dismissed. Along with the counter affidavit, the 3rd respondent had also attached the correspondence between the 3rd respondent and officials of the National Informatics Centre. On 23.10.2020, the 3rd respondent had forwarded a message to the National Informatics Centre, requesting the National Informatics Centre to check whether counter statement was served or not on 16.05.2019. In reply, the National Informatics Centre had stated that no counter statement was sent by the 3rd respondent on 16.05.2019 and the mail sent on 09.01.2021 was successfully sent.
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12. Sri Ashok V.Ram Kumar, learned counsel for the petitioner would submit that the earlier notices sent by the officials on the ground that counter statement had been served on the 4th respondent on 16.05.2019 would clearly demonstrate that the notice was in fact sent on 16.05.2019 and the official respondents to help the 4th respondent have come up with the theory of non-service of notice, which is no tenable.
13. The grievance of the Trademark Act and the Rules made there under would clearly show that if the evidence affidavit under Rule 45 is not filed within two months on receiving the counter statement of the applicant, any opposition raised against such an application, would have to be deemed to have been abandoned. The entire controversy revolves around whether the notice of counter statement was served on the 4th respondent on 16.05.2019 or on 09.01.2020. Various contentions have been raised and vigorously pressed by Sri Ashok V.Ram Kumar, learned counsel for the petitioner. In support of his contention a notice was served on 16.05.2019. Sri G.V.S.Jagannadharao, learned counsel has also pressed the case of the 4th respondent that notice was not served on 16.05.2019. This is a question of fact in to which this Court would not normally step into. However, for the reasons set out below this court is going into this question.
14. In the present case, this Court would prefer to rely upon the report of the National Informatics Centre, which is a state body that has no stakes in the entire controversy. The report of the said National Informatics Centre is that the notice 8 RRR,J W.P.No.11761 of 2020 said to have been sent to the 4th respondent on 16.05.2019 was not sent.
15. In these circumstances, it would have to be held that the 4th respondent was not served with the counter of the petitioner on 16.05.2019 and the same was served only on 09.01.2020. In the circumstances, the filing of the evidence affidavit by the 4th respondent, under Rule 45, is within time.
16. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand closed.
____________________________ R. RAGHUNANDAN RAO, J 23.02.2021 RJS 9 RRR,J W.P.No.11761 of 2020 HON'BLE SRI JUSTICE R. RAGHUNANDAN RAO WRIT PETITION No.11761 of 2020 23rd February, 2021 RJS