ブックタイトル縁19号

概要

縁19号

ment of complete specification on directions from Government in cases relating to atomic energy'gives the opportunity of being heard to the patentee before revoking the patent as well as in section80 which talks about‘Exercise of discretionary powers by Controller' gives the opportunity of beingheard to the patentee before exercising the discretion. In the similar manner a provision must also bemade in case of Sec 21 and rule 138 needs to be modified keeping in mind the better interest of thesociety and as such the nation as a whole.RECENT CASES OF ABANDONMENT IN TRADEMARKSAND DECISION THEREOF IN INDIA1. IN DELHI HIGH COURTThe office of the Controller General of Patents, Copyrights and Trademark on 31.03.2016 and on04.04.2016 issued a public notice abandoning nearly 2,00,000 trademark applications which were due forprocessing at various stages. The reasons for the mass abandonment of the applications have been cited inthe order of Registrar published on the official website as:"It was clearly mentioned in the examination report that if no reply is received or a request for a hearingis applied for within the above mentioned stipulated time, the said application shall be treated to have beenabandoned for lack of prosecution under Section 132 of The Trade Marks Act, 1999". The applications havebeen said to be abandoned in light of the Rule 38 (5) of the Trade Mark Rules which specifically speaks that"if no reply or correspondence to the examination report is received within one month from the date ofissuance of the report, the application shall be deemed to have been abandoned". Hon'ble Justice ManmohanSingh stayed the order of abandonment passed by the Trade mark Office on or after March 20, 2016and ordered not to treat any trademark application as abandoned without prior notice and fair hearing tothe affected party.2. IN HIGH COURT OF JUDICATURE AT HYDERABAD FOR THE STATES OF TELANGANA ANDANDHRA PRADESH HIGH COURTIn January 30, 2017, the Trademark Registry issued a public notice ordering abandonment of nearly20,000 trademark applications. The said notice aimed at clearing back log of cases. However, the Applicantswere given one last opportunity of sending a scanned copy of reply to Examination Report on or beforeFebruary 28, 2017, failing which the applications will be deemed to be abandoned.Aggrieved by the order of the Trademark Registry, a writ petition was preferred with the High Court ofJudicature at Hyderabad for the States of Telangana and Andhra Pradesh under Section 151 of the Code ofCivil Procedure, 1908, against the January 30 public notice. The Petitioner placed reliance on the order ofthe Delhi High Court dated April 05, 2017. At this juncture, High Court of Judicature at Hyderabad followedthe footsteps of Delhi HC and against the arbitrary order of the Trademark Registry, Hon'ble JusticeMr. Challa Kodanda Ram directed the Office of the Controller to not treat any trade mark application asabandoned without prior notice and fair hearing to the affected party, as provided under section 121, 128and 132 of the Trademarks Act, 1999.NOTABLE POINT:WHY DIFFERENCE BETWEEN PATENT AND TRADEMARK?? Sec 132 of the Trademarks Act, 1999 requires the applicant to remedy the default after giving himan opportunity of being heard. Only then, if the default is not remedied within time specified, theapplication can be abandoned. Whatever the reason may have been, the judiciary's quick steps toreverse the problems caused by the Trade Marks Registry and the Trade Marks Registry's decisionIP Friends Connections August 2018 No.19ENISHI27