Partly allowed

Avon Cycles Ltd. v. Manish Raj Goyal and Anr.

Delhi HC18 Sept 2024C.A.(COMM.IPD-TM)/14/2022

Case brief

AI extract

What is this about?

This appeal was filed against the dismissal of an opposition to a trademark registration due to deemed abandonment. The High Court found no proof of service of the counter-statement and remanded the matter to the Trade Marks Registry to serve the document via email and allow evidence filing. quality

What did the court decide?

The appeal is disposed of; matter remanded to the Trade Marks Registry to serve the counter-statement via email and allow the appellant to file evidence.

Avon Cycles Ltd. Vs Manish Raj Goyal and Anr. — Writ and Judicial Review | Delhi HC (2024)

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$~5

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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C.A.(COMM.IPD-TM) 14/2022

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AVON CYCLES LTD. .....Appellant

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Through: Ms. Zeba Tarannum Khan, and Ms. Sruthi Venugopal, Advocates Mob: 9818558690 Email: [email protected] versus MANISH RAJ GOYAL AND ANR. .....Respondents Through: Mr. Harish Vaidyanathan Shankar, CGSC, with Mr. Srish Kumar Mishra, Mr. Alexander Mathai Paikaday and Mr. Sagae Mehlawat, Advocates.

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CORAM: HON'BLE MS. JUSTICE MINI PUSHKARNA

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O R D E R % 18.09.2024

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The present appeal has been filed under Section 91 of the Trade Marks Act, 1999 assailing the order dated 06th April, 2018, passed by the respondent no.2-Deputy Registrar of Trade Marks, whereby, the opposition no. DEL-783156 filed by the appellant against the respondent no.1’s application no. 1932181, for the trademark

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C.A.(COMM.IPD-TM) 14/2022 Page 1 of 6

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This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/09/2024 at 11:52:04

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‘WAVON’/ in Class – 06, has been dismissed.

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It is submitted that the appellant’s trademark ‘AVON’ has multiple registrations in Class-12 since 8^th June, 1959.

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As per the case canvassed on behalf of the appellant in the present appeal, the fact are as follows:

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3.1 The appellant, i.e., M/s AVON Cycles Limited is engaged in the business of manufacturing, marketing and exporting bicycles, bicycle parts and accessories thereof, and other cognate and allied goods, since 1952 under the trademark ‘AVON’.

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3.2 The appellant-company is the registered proprietor of various ‘AVON’ marks in various Classes, including, Class – 6, 9, 12, and 32.

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3.3 The respondent no. 1 herein filed an application bearing no. 1932181

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seeking registration of ‘WAVON’/ , in Class-6, which is the impugned application. The application filed by the respondent no.1 before the Trade Mark Registry, is reproduced, as under:

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C.A.(COMM.IPD-TM) 14/2022 Page 2 of 6

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/09/2024 at 11:52:04

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3.4 Subsequently, the appellant filed opposition proceedings against the aforesaid application of the respondent no.1. The notice of opposition was numbered as DEL – 783156.

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3.5 The respondent no. 1 filed its counter statement, which as per the present appeal, was never served upon the appellant. Thus, in view of nonservice of the counter statement, the evidence could not be filed by the appellant before the Trade Mark Registry.

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3.6 However, by way of the impugned order dated 6^th April, 2018, passed by the learned Deputy Registrar of Trade Marks, the opposition application of the appellant herein, was dismissed as deemed to have been abandoned,

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C.A.(COMM.IPD-TM) 14/2022 Page 3 of 6

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/09/2024 at 11:52:04

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on the ground that the appellant herein, has not filed any evidence in support of its opposition, nor has any statement been filed on behalf of opponent.

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The order dated 6^th April, 2018, reads as under:

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“xxx xxx xxx

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ORDER

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Proceedings were initiated under Section 21 of the Trade Mark Act, 1999, by the above named opponent to oppose the registration of trade mark applied for by the above named applicant and whereas the Counter Statement was filed by the applicant and the same was served to the opponent vide 73+74 dated 17-06-2016 and whereas within the time prescribed under the rules, neither any evidence in support of opposition was filed nor any statement was submitted on behalf of the opponent to the effect that the opponent does not desire to adduce evidence but wants to rely on the facts mentioned in the Notice of Opposition the abovementioned opposition is therefore deemed to have been abandoned under Rule 45(2) of the Trade Marks Rules 2017.

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IT IS HEREBY FURTHER ORDERED that there shall be no order as to cost of these proceedings.

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Signed and Sealed at Delhi dated this 06 April, 2018

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V. NATARAJAN FOR DEPUTY REGISTRAR OF TRADE MARKS Dated:06/04/2018

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xxx xxx xxx”

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It is the case of the appellant that in the absence of receipt of the counter statement, no evidence could have been filed by the appellant and that the impugned order is therefore, bad in law.

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No reply has been filed on behalf of the respondents.

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Today, learned counsel appearing for respondent no. 2, i.e, Registrar of Trade Marks, submits that he has instructions to submit that a copy of the counter statement had been sent to the appellant by post, by the office of the Registrar of Trade Marks.

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C.A.(COMM.IPD-TM) 14/2022 Page 4 of 6

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However, on pointed query by this Court as regards the Tracking Report, showing proof of service upon the appellant, learned counsel appearing for the respondent no.2, fairly submits that no such proof is available with the Registrar of Trade Marks.

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Accordingly, this Court is of the view that that benefit of doubt has to be given to the appellant, as there is nothing on record to show that a copy of the counter statement filed on behalf of respondent no.1, was actually served upon the appellant herein.

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It is also to be noted that no E-mail was sent to the appellant in this regard by the respondent no.2.

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This Court notes the submission of learned counsel appearing for respondent no. 2 that at that point of time, practice of sending the documents by way of E-mail, was not there and that such practice has been adopted, only after the new Trade Marks Rules, 2017, came into force.

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Accordingly, the matter is remanded back to the Trade Marks Registry.

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It is directed that a copy of the counter statement filed by respondent no. 1, shall be served on the E-mail of the appellant, including, the following E-mail: [email protected], as given by learned counsel appearing for the appellant.

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The appellant is also directed to update the record of the Trade Marks Registry with respect to its latest and current postal address, as well as E- mail address, wherein, communications can be sent by the Trade Marks Registry, to the appellant.

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Upon receipt of the counter statement filed by respondent no. 1,

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C.A.(COMM.IPD-TM) 14/2022 Page 5 of 6

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This is a digitally signed order.

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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/09/2024 at 11:52:04

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evidence and other requisite documents/reply thereto, shall be filed by the appellant, as per procedure.

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The Registry is directed to supply a copy of the present order to the Office of the Controller General of Patents, Designs and Trade Marks of India, on E-mail Id: [email protected], for compliance.

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With the aforesaid directions, the present appeal is disposed of.

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MINI PUSHKARNA, J

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SEPTEMBER 18, 2024 ak

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C.A.(COMM.IPD-TM) 14/2022 Page 6 of 6

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Avon Cycles Ltd. v. Manish Raj Goyal and Anr.

Case brief

What is this about?

What did the court decide?

Avon Cycles Ltd. v. Manish Raj Goyal and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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