FEROZUDDIN Versus N.A. PERVEZ

This appeal is directed against an order dated 17‑6‑1979 passed by the Registrar of Trade Marks in rectification application No.6 of 1972 which was file by the present appellant for rectification of the colour scheme and the design of label registered under the name of 'Maknap' whereas the applicant's application for registration of the trade mark 'white' for the same product with the more or less same design of label with minor variation remained pending since 23‑9‑1970. The appellant had sought the rectification on two grounds namely, the fraud and secondly non bona fide intention to use the registered trade mark on the part of the respondents. The learned Registrar recorded finding that no fraud was practised by the respondent: while obtaining the above registration. As regards the non bona fide intention to use on the part of the respondents, he has observed that the registration of the trade mark was finally accepted in October, 1972 whereas the appellant filed the aforesaid rectification application on Ist December, 1972 and therefore, it was too early to say, whether in fact the respondents had no bona fide‑ intention to use the registered trade mark. The appellant being aggrieved by the above order has filed the above appeal.

2. Mr. Iqbal Ahmed, learned counsel for the appellant in support of the above appeal has urged as follows:‑

(i) That the respondents had filed their registration application after the expiry of about one year from the date of filing of the application filed by the appellant but got the trade mark registered itself indicates that they had practised fraud, particularly in view of the fact that no notice was given to the appellant whose application was pending for the same design of label.

(ii) That since the Registrar had disposed of the above rectification application on 17‑6‑1979 i.e. after the expiry of more than 5 years, clause (b) of Section 37 of the Trade Marks Act, 1940 was attracted to and, therefore the learned Registrar should have granted the application on the ground that there was no bona fide intention on the part of the respondents in using the registered trade mark.

3. ???????? Adverting to the first submission of Mr. Iqbal Ahmed, learned counsel for the appellant, it may be observed that the learned Registrar in his order under appeal has pointed out that the registration of trade mark was made in favour of respondents after complying with the requirement and publication in the Trade Mark Journal of February, 1972 and that there was no fraud on the part of the respondents. The learned counsel for the appellant has not been able to show what facts would constitute fraud. The respondent had filed their application with the design of label. There was no suppression as to any fact from which it could have been inferred that there was fraud on the part of the respondents.

4. Reverting to the second submission of Mr. Iqbal Ahmed, learned counsel for the appellant, it may be observed that though in a fit case a Court is competent to take into consideration the subsequent events after the initiation of legal proceedings which might have taken place but this is not a rule of law. The question, whether subsequent events are to be taken into consideration in a particular case will depend on facts of that case. In the instant case, as, pointed out by the Registrar, the application for rectification was filed hardly after the expiry of two months from the date of registration and, therefore the ground referred in clause (b) of subsection (1) of section 37, namely, expiry of 5 years period of non‑user was not available with the appellant at the time of filing of the said application for rectification, If the above period would have expired at the time of filing of rectification application, the appellant would have pleaded the same and the other side would have opportunity to meet the above plea. If the respondents could have shown sufficient cause for non‑user of the registered trade mark and the design of label for the above statutory period, the above ground might not have been available to the appellant. In my view the learned Registrar was right in not taking into consideration the subsequent events which had occurred after the filing of the rectification application. However, it is open to the appellant to file a fresh application on the above ground even now. The order under appeal seems to be in consonance with law and, therefore does not call to be interfered with by this Court in Misc. Application. The appeal has therefore no merits and hence it is dismissed but there will be no order as to costs.

H.B.T./F‑34/K ???????????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.