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Miscellaneous Appeal No.70 of 1983, decided on 1st March, 1986.

---Ss.6,.10 & 76--Trade Marks Rules, 1963, R.43-7-Death of applicant before registration of trade mark--Application for subsitution of name of legal representatives--Held, no limitation was provided in Act for filing of such application--Rule 43 no doubt fixed a period of ninety days within which an application for substitution of names of legal representatives after death of original applicant had to be a made, bur there was no other rule providing that if such application is not made within ninety days the application- pending ::::fore Registrar would abate--Order of Registrar dismissing application of applicant':. predecessor as having abated, being erroneous, order of Registration was set aside and case remanded, for, disposal on merits.

Rashid Ahmed and 8 others v. Muhammad Arshad P L D 1975 Lah. 1195 and Abdul Rauf Ghaziani v. Zaibunissan and 2 others PLD 1975 Kar. 76 ref.

Khalid Kazilbash for Appellant.

Zain Shaikh for Respondents.

Date of hearing: 17th February, 1987.

The common question of law raised in these two appeals i s whether these appeals which were originally filed by the appellant s predecessor, for registration of the Trade Marks "CANNON" and "CANNON BABY SAFE" had abated after a lapse of more than ninety days from his death on 24-8-1982 in view of rule 43 of the revised Trade Mark Rules, 1963.

There is no contest on the point that the predecessor-in-interest of the appellant in these two appeals, namely, S.M. Saeed had died on. 24-8-1982 during the pendency of his two applications which had been separately filed before the learned Registrar for registration of the trade marks as pointed out above. After the death of his predecessor appellant Abdullah Saeed being one of the sons of S.M. Saeed and also a legal representative of the deceased application in Form TM-16 before the learned Registrar for the Institution of his name in the Registrar's record as proprietor two unregistered trade marks, the applications for registration whereof were pending before the learned Registrar. The appellant also submitted to the Registrar a copy of an agreement executed by the representatives of deceased S.M. Saeed, whereby they had the respective shares inherited by them from the deceased S.M. Saeed in favour of the appellant. The respondents who had filed notice of opposition in the two applications after learning about the death appellant s predecessor raised objections by their applications dated 1-11-1983 which were sent through their Advocates, M/s. Surridge & Beecheno by requesting the -Registrar to treat the applications for registration of the trade marks as abandoned. The objection was consequently upheld by the learned Registrar vide his decision dated 4-4-1983 and hence this appeal.

The learned Registrar in his decision has held that since the appellant had failed to apply for substitution of the names of the legal representatives of the original applicant within ninety days as required by rule 43 of the aforesaid rules the two applications pending before the Registrar had abated. Moreover, according to the learned it was incumbent upon the appellant to bring all the -legal on record of the case. Consequently it was held by that the applications for registration of the respective trade marks had abated.

I have heard Mr. Khalil Kizilbash, learned counsel for the appellants and Mr. lain Shaikh, learned counsel for the respondents.

The sole ground urged by Mr. Kizilbash has been that there is no provision in the aforesaid Trade Mark Rules under which the application for registration of a trade mark has to abate owing to the death of the applicant if the names of his legal representatives are not substituted within ninety days from his death as provided by rule 43, Mr. Zain Shaikh on the other hand has fully supported the impugned order, as according to him abatement of the proceedings was a logical consequence of rule 43 which for convenience of reference is reproduced as follows:-

"Death of applicant before registration.--In case of death of any applicant or the registration ova trade mark after the date of his application and before the trade mark has been entered in the register, the Registrar may, on proof of the applicant's death and of the title of another person to the ownership of the trade mark, (being furnished to him within ninety days) enter in the register the name, address and description of that person as the proprietor of the trade mark."

No doubt rule 43 fixes a period of ninety days within which an application for substitution of the names of the legal representatives after the death of the original applicant for registration of a trade mark is to be made but at the same time there is no other rule providing that if such application is not made within ninety days the application pending before the Registrar shall abate. Admittedly there is no provision in the Trade Marks Act, 1940 under which any period of limitation is provided for filing of such application by any person who has become entitled to the ownership of the trade mark after the death of the original applicant. However, section 84 empowers the Federal Government to make rules by notification in the official Gazette to carry out the purposes of the Act. Be that as it may but since no such provision can be found in the rules providing for abatement of the application for registration of a trade mark in case of non compliance with rule 43, it appears that the order passed by the learned Registrar is not correct.

Reliance has been placed by Mr. Kizilbash on precedents and it would be worthwhile to refer to some of them. In Rashid Ahmed and eight others v. Muhammad Arshad (P L D 1975 Lah. 1195), it was held by the High Court of Lahore that proceedings under section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 could not abate on death of the petitioner in absence of such provision in the Ordinance and order of the Rent Controller holding that the ejectment petition had abated on the petitioner's death was held to be illegal. ' In Abdul Rauf Ghaziani v. Zaibunissa and two others (PLD 1975 Kar. 76), it was held that an application for probate or administration or succession certificate could be filed for the first time after lapse of three years from the death of the deceased without satisfactorily explaining such delay, notwithstanding rule 347 of the Sind Civil Court Rules which made it incumbent on the applicant to satisfactorily explain the delay in case such application was filed after a lapse of three years. Although the cases cited by me are somewhat distinguishable, but in the present case since there is no provision for abatement of an application for registration pending before the Registrar owing to the delay in making of an application for substitution of the names of the legal heirs, either in the Trade Marks Act or the rules made thereunder, the proceedings cannot be regarded as having abated. Moreover, since nothing prevents the appellant from making a fresh application for registration of the trade mark and such application cannot be dismissed by the Registrar on the ground that similar application filed by his predecessor had abated, the order of the Registrar clearly appears to be erroneous.

The upshot of the discussion is that the appeals are allowed and the order passed by the learned Registrar is set aside and the two cases are remanded to him for disposal on merits.

S. Q./A-162/K Appeals allowed.

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