Case Note & Summary
The petitioner, The Institute of Cost Accountants of India, a body corporate under the Institute of Cost and Works Accountants Act, 1959, filed a writ petition seeking a mandamus directing respondent No.1, the Registrar of Trade Marks at Mumbai, to fix a date of hearing for its application for registration of the trade mark 'CMA' in class 41. The petitioner had applied on 01.10.2010 and made several inquiries but received no response. On 13.03.2012, the petitioner discovered on the respondents' website an examination report dated 19.09.2011 addressed to its advocate in Kolkata, which stated that the mark was open to objection and requested a response within one month or a hearing, failing which the application would be treated as abandoned under section 132 of the Trade Marks Act, 1999. The petitioner contended that the examination report was never communicated to it or its advocates. The respondents argued that the report was sent to the advocate's address. The court noted that the respondents did not produce any evidence of service and that the petitioner had not received the report. The court held that the Registrar must fix a hearing for the application and directed respondent No.1 to fix a date of hearing within four weeks from the date of the order, after giving notice to the petitioner. The writ petition was allowed with no order as to costs.
Headnote
A) Trade Marks - Registration - Hearing - Mandamus - Petitioner applied for registration of mark 'CMA' under Class 41 - Examination report dated 19.09.2011 was not communicated to petitioner - Petitioner sought direction to fix hearing - Held that Registrar must fix hearing as per procedure under Trade Marks Act, 1999 and Rules, 2002 - Writ of mandamus issued (Paras 1-7).
Issue of Consideration
Whether the Registrar of Trade Marks is obliged to fix a date of hearing for a trade mark application when the examination report was not communicated to the applicant.
Final Decision
Writ petition allowed. Respondent No.1 directed to fix a date of hearing for the petitioner's application for registration of trade mark 'CMA' in class 41 within four weeks from the date of the order, after giving notice to the petitioner. No order as to costs.
Law Points
- Mandamus
- Trade Mark Registration
- Hearing
- Section 132 Trade Marks Act 1999
- Natural Justice
Case Details
2013 LawText (BOM) (03) 31
Writ Petition No.2088 of 2012
S.J. Vazifdar, Mrs. Mridula Bhatkar
Mr. Abhijit Chatterjee with Mr. N.B. Boral and Mr. Rakesh Pandey i/b Ashwin Ankhad & Associates for the Petitioner; Mr. D.A. Athavale with Mr. A.R. Varma for the Union of India - Respondents
The Institute of Cost Accountants of India
The Registrar of Trade Marks, Mumbai and The Registrar of Trade Marks, Kolkata
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Nature of Litigation
Writ petition seeking mandamus to direct Registrar of Trade Marks to fix hearing for trade mark application.
Remedy Sought
Writ of mandamus directing respondent No.1 to fix a date of hearing for petitioner's application for registration of trade mark 'CMA' in class 41.
Filing Reason
Petitioner's application for registration of trade mark 'CMA' was not responded to, and the examination report was not communicated to the petitioner.
Issues
Whether the Registrar of Trade Marks is obliged to fix a hearing for a trade mark application when the examination report was not communicated to the applicant.
Submissions/Arguments
Petitioner argued that the examination report dated 19.09.2011 was never communicated to it or its advocates, and despite inquiries, no hearing was fixed.
Respondents argued that the examination report was sent to the petitioner's advocate's address, but no proof of service was produced.
Ratio Decidendi
The Registrar of Trade Marks must communicate the examination report to the applicant and fix a hearing if requested; failure to do so entitles the applicant to a writ of mandamus.
Judgment Excerpts
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.
Admittedly, the letter / examination report dated 19.09.2011 was not forwarded to the petitioner or its advocates.
Procedural History
Petitioner applied for trade mark registration on 01.10.2010. On 30.03.2011, petitioner wrote to respondents about no response. On 13.03.2012, petitioner discovered examination report dated 19.09.2011 on respondents' website. Petitioner filed writ petition on 2012. Rule was issued and heard finally on 01.03.2013.
Acts & Sections
- Trade Marks Act, 1999: Section 132
- Trade Mark Rules, 2002:
- The Institute of Cost and Works Accountants Act, 1959: Section 3
