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Civil Miscellaneous Appeal No.69 of 1980 decided on 19th May 1986.

‑‑S.76‑‑Trade Marks Rules, 1963, R.76‑‑Objection to registration of trade marks‑‑Extension of time to file objection‑‑Registrar of Trade Marks, held, was not justified in refusing third request of appellant for extension of time for filing of notice of objection to registration of trade mark to respondent when same had already been filed only days after expiry of second extension granted by Registrar and within two months after expiry of prescribed period‑‑The very filing of notice of objection could have been treated as sufficient cause for granting extension of time‑‑High Court accepting extension, granted opportunity to appellant to contest matter on merits in accordance with law.

Anwarali for Appellant.

Khalil Kizilbash for Respondent.

The appellant is aggrieved by the order, dated 16‑7‑1980 whereby his third T.M. Form 55 for extension of time to file notice of objections was dismissed.

The appellant was the registered owner of "MOTHERCARE" mark since 1970, in class XXV.

The respondent No.2 applies for registration of the same mark in the same class and it was published on 27‑2‑1980, and objections could be filed within 2 months. Time expired on 27‑4‑1980.

However, on 11‑5‑1980 the appellant filed first request for extension, which was granted on 5‑6‑1980. The appellant however, had filed another request for extension on 25‑5‑1980 which was also allowed later on and time for filing objections was extended to 27‑6‑1980.

It appears that the appellant, who is a foreign firm, sent the necessary documents to its local agent late and they were able to file the notice of objections on 30‑6‑1980 along with the documents. Meanwhile they had filed another T.M. 55 for extension upto 27‑7‑1980.

On 16‑7‑1980 the Assistant Registrar of Trade Marks‑dismissed the third request of extension of time on the ground that 4 months time including the original two months had already been granted to the appellant and he should have been vigilant.

I am of the view that the learned Assistant Registrar was not justified in refusing the third request for extension of time for filing notice of objections when the same had already been filed on 30‑6‑1980 only 3 days after the second extension of time expired on 27‑6‑1980. I was a harsh view that in these circumstances the appellants were directed as not diligent. The appellants having already filed their objections should have been granted an opportunity to contest the matter on merits. No prejudice would have been caused to anyone by merely extending the time for another 4 days, the third time. Needless to mention that rule 76 of the Revised Trade Mark Rules has allowed the Registrar to grant extension upto 6 months as sufficient cause being shown to him. In the present case the very filing of the notice of objections on 30‑6‑1980 could have been treated and should have been treated as sufficient cause.

This appeal is, therefore, allowed and T.M. Form 55 of thel, appellant for the third extension is accepted and extension is granted upto 30‑6‑1980 when the T.M. 5 was filed.

Mr. Kizilbash had stated that Trade Mark of the appellant has already been removed from Register by the Registrar and therefore, this appeal is infructuous. He, however, has filed, Mark is allowed in his favour as otherwise, there is likelihood of conflicting judgment.

H.B.T. Appeal allowed.

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