The respondent was bound to communicate any objection or proposal in writing to the applicant. The respondent admittedly did
not do so. Placing the notice of the website does not constitute
compliance with that Rule 38(4) of the said Rules. The respondents have not indicated anything that obliged the petitioner to inspect the
website on a daily basis. Nor did they indicate any rule or practice by which the petitioner was bound legally to take notice of anything that is posted on the respondents' website. Rule 38(4) by itself does not
require an applicant for registration to inspect the respondents' website. The petitioner therefore cannot be imputed with the knowledge of the said letter dated 19.09.2011. The mere posting of the letter on the website does not constitute communication of the
objection or proposal in writing as required by rule 38(4).
Bombay High Court
C vs Cp-Ii, Sector-V, Salt Lake City on 1 March, 2013
Bench: S.J. Vazifdar, Mridula Bhatkar
..Versus..
1) The Registrar of Trade Marks, Mumbai, Government of India,
2. The petitioner is a body corporate constituted under the provisions of The Institute of Cost and Works Accountants Act, 1959.
Respondent Nos.1 and 2 are the Registrars of Trade Marks at Mumbai & Kolkata respectively. C
3. The petitioner seeks a writ of mandamus directing respondent No.1 to fix a date of hearing in respect of its application
for registration of a trade mark "CMA" in class 41.
On 01.10.2010, the petitioner applied for registration of the said mark for goods and services. The petitioner by a letter dated H
30.03.2011, inter-alia stated that it had not received any response from the respondents in respect of its application for registration y
despite several enquiries having been made from time to time and ba
that as a result thereof, it was unable to provide training and award degrees / certificates on the "newest branches of management and om
accountancy".
5. On 13.03.2012, the petitioner noticed on the respondents' website a letter / examination report dated 19.09.2011 from B
respondent No.1 to its advocate in Kolkata stating that its application had been examined under the Trade Marks Act, 1999 and Trade Mark Rules, 2002 and that the mark was open to objection for the reasons mentioned therein. For the purpose of this writ petition, the 2/5
objections are not relevant. The petitioner was requested to submit rt
its response within one month from the date of receipt of the said letter / examination report or to apply for a hearing. It was further ou
stated that if no reply was received or a request for a hearing was not applied for, the application would be treated as having been C
abandoned for lack of prosecution under section 132 of the said Act.
6. Admittedly, the letter / examination report dated h
19.09.2011 was not forwarded to the petitioner or its advocates. It ig
was merely placed on the respondents' website.
7. The petitioner's advocate by a letter dated 28.03.2012 H
stated the above facts. It was inadvertently stated that he had logged into the respondents' website on 28.03.2012, whereas he had in fact y
done so on 13.03.2012. The same however is of no consequence. ba
The petitioner's advocate requested the respondents to treat the date of downloading from the website as the date of the petitioner's om
knowledge of the order contained in the said letter / examination report dated 19.09.2011 ; exercised the option for furnishing the objections and applied for a hearing. B
8. Rule 38 of the Trade Marks Rules, 2002 reads as under :- "38. Expedited examination, objection to acceptance, hearing :-
..................................... (4) If on consideration of an application for 3/5
registration of a trade mark or on an application for an expedited examination of an application referred to in rt
sub-rule (1) and any evidence of use or of distinctiveness or of any other matter which the applicant may or may be required to furnish, the ou
Registrar has any objection to the acceptance of the application or proposes to accept it subject to such conditions, amendments, modifications or limitations as he may think fit to impose under sub-section (4) of C
section 18, the Registrar shall communicate such objection or proposal in writing to the applicant. (5) If within one month from the date of communication referred to in sub-rule(4), the h
applicants fails to comply with any such proposal or fails to submit his comments regarding any objection ig
or proposal to the Registrar or apply for a hearing or fails to attend the hearing, the application shall be deemed to have been abandoned." H
9. The respondent was bound to communicate any objection or proposal in writing to the applicant. The respondent admittedly did y
not do so. Placing the notice of the website does not constitute ba
compliance with that Rule 38(4) of the said Rules. The respondents have not indicated anything that obliged the petitioner to inspect the om
website on a daily basis. Nor did they indicate any rule or practice by which the petitioner was bound legally to take notice of anything that is posted on the respondents' website. Rule 38(4) by itself does not B
require an applicant for registration to inspect the respondents' website. The petitioner therefore cannot be imputed with the knowledge of the said letter dated 19.09.2011. The mere posting of the letter on the website does not constitute communication of the 4/5
objection or proposal in writing as required by rule 38(4). rt
10. The letter dated 19.09.2011, at the highest, can be said to have been communicated to the petitioner only on the date on which ou
the petitioner noticed it on the website viz. 13.03.2012. Within one month thereof, the petitioner's advocate by the said letter dated C
30.03.2012 applied for a hearing, which he has been denied thus far. The petitioner's application for registration cannot therefore, be h
deemed to have been abandoned.
11.
ig
In the circumstances, the writ petition is disposed of by the following order :-
H
i). It is declared that the petitioner's application for registration of its mark under class 41 has not been abandoned. y
ii). Rule is made absolute in terms of prayer (a). ba
No order as to costs.
om
(MRS.MRIDULA BHATKAR, J.) (S.J. VAZIFDAR, J.) B
No comments:
Post a Comment