Linear Technology, a corporation organized under the laws of the
United States of America, had filed an interlocutory application,
seeking leave of the Tribunal to take on record an affidavit sworn
in by the Corporate and Intellectual Property Counsel of their
company as evidence in support of the Application filed as under
Rule 51 of the Trade Marks Rules, 2002. The matter Linear
Technology Corporation v. Larsen & Toubro Ltd. deals with
delay in filing of evidence, heard at the office of the Registrar
of Trademarks, Kokatta.
An application had been filed under Class 9 in respect of
Integrated Circuits by Linear Technology. The mark as under Section
20(1) was advertised before acceptance pursuant to which an
objection was filed by M/s Larsen & Toubro Ltd (popularly known
as L&T). Linear Technology filed a counter-statement denying
the objections raised within the prescribed time. A copy of the
same was served to L&T to enable them file evidence in support
of the opposition as propounded by Rule 50 of the Trade Mark Rules.
L&T filed evidence which was taken on record within the
extended time and a copy was served on Linear, consequent to which
they failed to take any action with regard to filing of evidence.
Applications for extension of time were filed vide TM-56 thrice.
Later they filed an affidavit sworn in by their Corporate and IP
Counsel as evidence and prayed for the same to be taken on record.
The evidence having been adduced beyond the prescribed time, a
show-cause notice was issued as to why the evidence must be taken
on record. The interlocutory petition being contested was filed
thereafter before the Registrar of Trade Marks.
The counsel for Linear Technology stated that they had been
collecting documentary evidence and information from various
sources to be included in the affidavit and that this process had
consumed considerable time. It was stated that they had never
lacked in diligence and that the delay of 122 days did not take
away the diligent effort to protect their valuable IP in the mark
"LTM". Stating that the evidence was now in compliance
with the statute, he averred that procedural requirements should
not be applied rigidly to the detriment of any of the litigating
parties and that if the evidence is relevant the same should not be
L&T was not present at the hearing, however, the Registrar
gave due regard to the comments filed by them. Therein, they stated
that condonation of delay in view of the evidence must not be
allowed in view of the fact that the affidavit, nor the time taken
to collect evidence of which they had prior notice. Further it was
stated that Linear' request for extension was beyond the period
of limitation and that the same could not be looked into especially
since the same was not provided for under the Trade Marks Rules,
The Registrar taking note of the relevant dates and action
undertaken by Linear stated that the evidence filed although late,
should not be dismissed, in view of the cardinal principle of
justice and equity. The Registrar also stated that the evidence
must be relevant for the determination of the issue. The decision
of Asian Paints Ltd. v. Registrar of
Trademarks 2005 (30) PTC 444(IPAB) was also taken
into consideration. It was opined that no doubt a lapse had
occurred on the part of Linear, the Registrar opined that in the
interest of justice and in exercise of discretion of the Registrar
in opposition matters, as under Section 131(1) of the Trade Marks
Act 2000, he allowed the plea of Linear and allowed L&T the
liberty to file their evidence-in-reply within one month of receipt
of the present order.
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