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Miscellaneous Appeal No.66 of 1983, decided on 22nd December, 1986.

---Ss.15 & 76--Trade mark--Registrar of Trade Marks, while reusing appellant's application for registration, foiling to consider and discuss documentary evidence produced by him--Application of appellant was 2issed without same having been advertised and opposition to same 4mirrg been made--Held, order of Registrar suffered from non -consideration of relevant material---Order set aside and case remanded to Registrar for consideration of opposition of appellant as well as his application for registration.

---S.76--Trade mark--Registration--Registrar of Trade Marks has jurisdiction and authority to comment upon oral evidence produced by parties.

M. Jamiluddin Chughtai for Appellant.

S. Shaukat Ali for Respondents.

Date of hearing: 22nd December, 1986.

This appeal has been filed against the Judgment of Registrar of Trade Marks, dated 5-9-1983.

2. The respondent had applied for registration of Trade Mark "Lai Shabab" for its own sweet scented supari on 13-8-1981, which was duly advertised in August, 1982. The appellant had requested for extension of time for filing opposition in December, 1982 and they were allowed to do so. Three requests for extension of time were allowed and the final time allowed ;s up () 113-1983. Meanwhile, the appellant had also applied for registration of the mark "Lai Shabab" for its own sweet scented supari on 26-10-1982.

3. The appellant filed its opposition to the mark of the respondent on T.M.5. The Registrar of the Trade Marks had allowed the parties to file the evidence in support of the claims of the appellant and respondent No.2. The arguments were also heard and as a result thereof the opposition of the appellant was refused and alongwith that the application for registration of the mark made toy the appellant was also dismissed.

4. At the out set Mr. Jamiluddin Chughtai had contended that he had not been given adequate opportunity to produce his evidence. I do not find sufficient justification for this contention in view of the fact that the appellant was allowed 3 months' time to file the opposition and in fact the matter was finally fixed only on 24-5--1983 for argument. If the appellant had made effort to file additional affidavit upto 24-5-1983, I am quite sure that he would have been allowed to do so But it was only on 1-9-1983 that the appellant had made effort to produce further evidence by 2 affidavits. The Registrar refused to entertain these 2 affidavits and if we consider the time between 9-12-1982 when the first request for extension was made by the appellant then even the 6 months time, which is available to file opposition under rule 76 would seem to expire in May, 1983 and hence the request made on 1-9-1983 was too belated to 'nave been allowed. Therefore, this ground is rejected.

5. The counsel then submitted that the Registrar has taken into consideration only the affidavits of 3 Sales Representatives of the appellant and has rejected them without a valid reason. He further contended that the documentary evidence filed by the appellant in the form of Bill Book, which starts from 2-12-1979 as well as the bill of printing charges in respect of "Lai Shabab" issued by the H.B. Printing Press in favour of the appellant in 1971 and 1980 has also been left out of consideration and so also carrier receipt.

I have seen the order impugned before me and I do find that the entire Bill Book produced by the appellant before the Registrar has been completely ignored and even the two bills of the press, which show printing of carton of "Lal Shabab" and also the Transport receipt for carriage of Carton of "Lal Shabab" in January, 1980 and March, 1980 have also been ignored.

Mr. Shaukat Ali, Advocate for the respondent No.2 had submitted that it is very easy for a person to get the printing press bills or the transport bills and, therefore, this should not be given an importance, I do not agree with this submission because whatever material is produced by the parties has to be considered by the Registrar of the Trade Marks and then it is of course open to him to reject or accept a particular material on different grounds, which may appeal to him. But the non-consideration of relevant material would tantamount to non-application of mind in respect of record and would vitiate the judgment.

7. Moreover, even the counsel of the respondent could not explain as to why the Bill Book produced by the appellant, which is on record and starts from 2-12-1979, has been left out of consideration if this Bill book is really found to be authentic then this would change the whole concept of the case. I am not saying that this bill book sold be relied upon by the Registrar, but what I am saying is that if it was found reliable then it would show the use o the same mark by the appellant from December, 1979 at least and there after it would be difficult to come to the conclusion that the appellant had merely copied out the mark of the respondent after it was published in August, 1982. Therefore, without commenting upon the bill book and the other material referred to above by me, I am of the opinion that the judgment in question suffers from non-consideration of the relevant material by the Registrar of the Trade Mark. The Registrar Of the Trade Mark has the jurisdiction and authority to comment upon the oral evidence produced by the parties, but he has to discuss the documentary evidence and that having not been done his judgment is vitiated.

8. The figures of the sales supplied by the parties were of course supported by the oral evidence mainly but the bill book is more than oral evidence and it can provide some corroboration to the oral evidence if it is found reliable.

9. The respondent had filed assessment order and the licence granted by the Excise and Taxation Authority in his favour. This was of course relevant material and could have been relied upon by the Registrar of the Trade Mark. In any case, this material has to B be considered also with the material produced by the appellant and then alone a proper decision can be arrived at in respect of the use of the mark by the two parties or in respect of their bona fides.

The further objection to the impugned order is that it has dismissed the registration application of the appellant without the same having been advertised and opposition to the same having been made. This appears to be a correct objection and I sustain this objection and set aside the order of dismissal of the application for registration of mark made by the appellant particularly in view of the fact that the documentary evidence produced by the appellant has not been considered by the Registrar of the Trade Mark.

10. The result is that this appeal is allowed and the impugned judgment is set aside and the case is remanded to the Registrar for reconsideration of the opposition of the appellant as well as the application for registration of the appellant after it is properly processed under the Trade Marks Act.

This appeal, is therefore, allowed with no order as to costs.

M.Y.H./M-288/K Case remanded.

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