IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.02.2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA C.R.P.(PD)No.3765 of 2008 and M.P.No.1 of 2008 M/s Bal Pharma Ltd. having its Office at No.21/22 Bommasandra Industrial Area Hosur Road, Bangalore 560 099. ... Petitioner vs. 1. M/s Glenmark Pharmaceutical Ltd., having its office at Glenmark House, HDO Corporate Building, Wing - A B.D.Sawant Marg, Chakala, Off Western Express Highway, Andheri East, Mumbai 400 099. 2. The Deputy Registrar of Trademarks, Office of the Trademarks Registry, Branch at Chennai, IPR Building, GST Road, Guindy, Chennai 600 032. ... Respondents Civil revision petition filed under Article 227 of the Constitution of India against the order dated 11.07.2008 made in MP No.43 of 2008 in O.A./14/2008/TM/CH, passed by the Intellectual Property Appellate Board, Chennai. For Petitioner : Mr.N.Ramaswami(No appearance) For Respondents : Mr.T.D.Selvan Babu (for R1) O R D E R
Inveighing the order dated 11.07.2008, passed by the Intellectual Property Appellate Board, Chennai in MP No.43 of 2008 in O.A./14/2008/TM/CH, this civil revision petition is focussed.
2. A ‘resume’ of facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The first respondent/appellant filed the O.A.14/2008/TM/CH on the file of Intellectual Property Appellate Board, Chennai seeking the following reliefs:
“(a) allow the appeal of the appellant, set aside the order dated 05.10.2007 of the respondent No.2 herein, the learned Deputy Registrar of Trade marks, Chennai passed in Opposition No.MAS-164028 and communicated vide Letter Serial NO.TOP/12879 dated 22.10.2007 and allow the Opposition filed by the Appellant against the Respondent No.1 and thus render justice.
(b) The Respondent No.1 be asked to bear the cost of this proceedings under the provisions of Rule 19 of Intellectual Property Appellate Board (Procedure) Rules, 2003 read with paragraph (d) of sub Section (2) of Section 92 of the Trade Marks Act, 1999 on the ground that (i) the Respondent No.1 has knowingly and deliberately with dishonest intention in bad faith adopted the impugned mark which is closely, confusingly and deceptively similar to the prior registered trade mark of the Appellant in relation to medicinal and/or pharmaceutical preparations and, (ii) the Respondent No.1 filed the impugned application in total disregard to the guidelines laid down by the Hon’ble Supreme Court with regard to registration of trade marks in relation to pharmaceutical preparations in Class 05 with a view to avoid causing any confusion/ deception among consumers and thus render justice.
(c) Pending the hearing and final disposal of this appeal, direct the Trade Mark Registry not to issue the registration certificate.
(d) Pass any other further orders) as the learned Registrar may deem fit and proper in the facts and circumstance of this case.”
Whereupon, after hearing both sides, the Appellate Board passed the order as under, the operative portion of it would run thus:
“5. …. We allow the stay petition and direct the respondent No.2 not to issue certificate of registration under application No.1057752B in class 5 to respondent No.1 till the present appeal is disposed of by the Appellate Board. There shall be no order as to costs.”
Being aggrieved by and dissatisfied with such order passed in M.P.No.43 of 2008, this revision is focussed on various grounds.
3. Heard the learned counsel for the first respondent. Despite printing the name of the petitioner and repeated posting of the matter, no one represented the revision petitioner.
4. However, the learned counsel for the first respondent would advance his argument to the effect that the order passed by the IPA Board is reasonable and a balanced one too, which warrants no interference in revision and the O.A. itself is ripened for hearing and time may be fixed within which the Appellate Board could dispose of the matter.
5. A bare perusal of the order of the IPA Board would exemplify and display that it is a balanced order. The Board envisioned that by that order the revision petitioner would not in any way be affected because it could continue to use that Trade Mark pending the appeal before the IPA Board. On the other hand, if the revision petitioner is allowed to obtain the registration certificate, certainly it would lead to complications. The learned counsel for the first respondent would detail and delineate, express and expatiate as to how when once registration certificate is issued after making necessary entries in the register of trade marks, then even after cancelling the order concerned and directing deletion of the entry from the register, a cumbersome process should be undertaken and in the event of the respondents not willing to return the registration certificate, it would once again complicate the issue.
6. I could see considerable force in the argument of the learned counsel for the first respondent that by the impugned order, the respondents herein would not get prejudiced significantly in any manner. In the absence of any contra argument, I could see no merit in this revision petition. Accordingly, this revision petition is dismissed. As requested of the learned counsel for the respondents, the IPA Board is directed to dispose of the O.A. itself within a period of two months from the date of receipt of a copy of this order. No costs. Consequently connected miscellaneous petition is closed.
gms
To
The Intellectual Property Appellate Board,
Chennai