The persons acting in this act is for protecting officers and staff of the trademark registry from being dragged into legal proceedings in respect of acts done by then in the normal course of their duties.
Certain persons to be public servants
Under section 123 every person appointed under this act and every member of the Appellate Board are deemed to be public servants within the meaning of section 21 of the Indian Penal Code.
Death of party and abandonment of application
If a person who is a party to a proceeding before the registrar dies during the pendency of the proceeding. The registrar may substitute in the proceeding the name of his successor in interest in his place, on proof of the transmission of the interest of the deceased person. In the alternative, he may permit the proceeding to continue without the substitution of the successor in interest if in his opinion the interest of the deceased person is sufficiently represented by the surviving parties. As regards application for trademark registration, the rules prescribed specifically provides for amendment of the application by substitution of the name of the successor in interest in place of the name of the deceased applicant.
If the applicant in any application registered under the act or under the previous act relating to trademark fails to prosecute the same. The registrar may by notice require the applicant to remedy the defect within a time mentioned. Unless the default is remedied within such time, the registrar may after giving him if so desired an opportunity of being heard, treat the application as abandoned. The provision contained in section 102 applies to all applications under the act.
The rules prescribed deals with circumstances under which an application for trademark registration is treated as abandoned. Section 23(3) provides treating an application for registration as abandoned for non-completion of trademark registration under certain circumstances. Under section 21(2) an application for registration will be deemed to be abandoned. If the applicant fails to file the counter-statement. Again, under the rules prescribed an opposition is deemed to be abandoned if the opponent fails to take the action need under the rules.
Certain decisions relating to appeals under the trade and merchandise marks act
In an appeal by an application for registration against a decision under section 17, 18 or 21 neither the registrar nor the party opposing the appeal can, except by leave of the court, advance grounds other than those recorded in the decision or advanced by the party before the registrar. Where any such additional grounds are raised, the applicant for registration may withdraw his application without being liable to pay the costs of the appeal.
Merger of order
A merger takes place only when the court of appeal judicially determines the appeal pending before it. It is only on a judicial determination that the order of the lower court becomes merged in the decisions of the court of appeal. But no merger takes place when the court of appeal does not judicially determine the appeal but dismisses it on any preliminary ground like limitation or maintainability. Then on the dismissal by the appellate court, the order that still stands is the order of the court of appeal.
The trademark registration is applied for in the names of a member of partners anyone of those partners can act representing himself and others in matters of appeal.
Interference with registrar’s discretionary order
It is well settled that the granting of interim injunction is purely within the discretion of the court but the discretion has to be exercised in accordance with the sound judicial principles. Normally it is not open to the appellate court to substitute its own discretion for that of the trial court. But if it appears to the appellate court that in exercise of its discretion the trial court has acted capriciously or has adopted unjudicial approach then it would be open to the applicable court to interfere with the trial courts discretion.
The appellants members of a pop group called “REEF” applied to trademark registration “Reef” in class 25 and class 26. The goods were promotion or souvenir articles relating to a music group. The application was opposed by respondents (opponents) on the basis of the REEF COIMBATORE registered in class 25 in respect of footwear and on the application had been made in bad faith because the applicants did not have a bona fide intention to use the mark as a trademark in relation to goods but merely intended to use it as the name of their band for promotional purposes.
The opposition was dismissed by the trademarks registry and the respondents appealed to the high court. The court allowed the appeal under section 5(2) on the ground that the hearing officer erred in concluding that there was no likelihood of confusion between the applicants mark and the respondents registered mark. The judge dismissed the grounds based on section 3(6) and section 5(4) of the act.
There was no single standard by which it was appropriate to lay down how reluctant an appellate court should be to interfere with the trial judge’s evaluation of and conclusion on, the primary facts. The logo registration is compulsory for your registered name. The most important variables contained the nature of the evaluation required.
In the present case the hearing officer had to make a multifactorial comparison evaluating relevant of marks, same goods about the likelihood of confusion and the outcome of a national passing off claim. The hearing officer had not heard any oral evidence and in such circumstances an appellate court should show a real reluctance, but not the very highest degree of reluctance to interfere in the absence of a distinct and material error or principle.
Because it was of the opinion that the judgment or decision could have been better expressed. The duty to give reasons should not be turned into an intolerable burden.
The hearing officer had not erred in principle nor was he clearly wrong and the judge ought not to have substituted his own view on section 5(2). This entire trademark registration is makes a brand name to be identified everyone.
The hearing officer had concluded that the respondents had not proved its case under section 5(4) and the judge was right in not disturbing this conclusion.