India: Time-Barred Applications Toss Into The Registry – Zyro Allowed To File Opposition

Last Updated: 7 July 2008
Article by Manisha Singh

Issues of Limitation traditionally find a place in litigation. However, as quasi-judicial authorities are increasingly being established having the authority to hear and dispose off issues and differences, it is but natural that concerns such as being time-barred or not shall crop up before such bodies.

The Trademarks Act 1999, post publication provides a period of three months to oppose the published mark. An extension of one month may be granted at the request of the opponent. Although these facets of trademarks registration may seem to work like a strait-jacket formula, yet occasions arise when the Registry finds itself in a dilemma. Anjali Creations v. Zyro Ltd. [2008 (36) PTC 645 (Reg.)] was witness to one such instance of oblivion.

A opposition hearing at the Mumbai Trademarks Registry, Zyro Ltd. a company incorporated under the laws of England and Wales with respect to the word "ALTURA". In this regard an application for extension of time by one month was filed along with the notice of opposition. The question that came forth the Registrar dealt with the request being within the statutory period of time or not.

Zyro in their contention stated S. 21(1) of the Trademarks Act, 1999 as the clause governing filling of extensions. The registrar opined that a plain reading of the section revealed that there was no legislative intent to restrict filling of opposition to a period of three months and that no time period to file the application for extension of time had been specified. The counsel for Zyro also drew the attention of the court to the Trade Mark Rules, 2002 ( pertinently Rule 47(1)), by virtue of which a notice of opposition filed after three months was to be made along with the prescribed fee and an application under Rule 47(6). A plethora of cases were also taken aid of by the Opponents, in strengthening their stand.

On examining the statutory provisions, the Registrar reiterated that the Rules stated the procedural requirements were to enable oppositions to bona fide opponents, which came to the notice of the party after three months but before the lapse of four months. He stated that the legal fiction is not absolute, but limited by the word "shall" and the time limit prescribed in the statute-book. Applying the principle of "harmonious construction" to the Acts and Rules, and with due regard to a decision by the Delhi High Court, the registrar ruled that the word "shall" as in Rule 47(6) be construed to be directory in nature and not mandatory. Pronouncing this, the Registrar granted the extension of time, stating it to be within his discretionary powers to order such a ruling.

© Lex Orbis 2008

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