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Tetragon Chemie (P) Ltd. v. Government Of India Another.
Factual and Procedural Background
The petitioner, a company incorporated under the Companies Act, 1956, manufactures animal feed and veterinary products under the brand name VETCARE. The petitioner applied for a patent on 16.8.1984, which was granted in 1995 under the Trade & Merchandise Marks Act, 1957, specifically for Trade Mark 421953 in class 5. The petitioner was required to renew the patent every seven years and applied for renewal in 1996. However, the renewal was not processed, leading to removal of the trademark from the Register. The petitioner filed this writ petition seeking a mandamus directing the respondents to restore and renew the trademark from January 1996 to date. The petitioner contends that no prior notice was given before removal and that a renewal application was filed in 2002 along with the requisite fee. The respondents contend that the patent was renewed only up to 1998 and the petitioner failed to timely file for renewal thereafter.
Legal Issues Presented
- Whether the respondents were obligated to issue prior notice to the petitioner before removing the trademark from the Register under Section 25 read with Rule 69 of the Trade & Merchandise Marks Act, 1957.
- Whether the petitioner is entitled to an opportunity to renew the trademark despite the delay and removal from the Register.
Arguments of the Parties
Petitioner's Arguments
- The petitioner submitted that the order of removal from the Register was communicated only in 2003, and until then, the petitioner was unaware of the removal.
- The petitioner claims to have filed a renewal application in 2002 with the requisite fee.
- No prior notice was given to the petitioner before removal of the trademark, which is contrary to the requirements of the Act.
Respondents' Arguments
- The respondents contend that the trademark was renewed only up to 1998.
- The petitioner should have filed the renewal application well before the expiry of the seven-year period.
- Since the petitioner failed to renew within the prescribed time, removal from the Register was justified.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court examined Section 25 read with Rule 69 of the Trade & Merchandise Marks Act, 1957, which mandates prior notice before cancellation or removal of a trademark from the Register. The court found no material evidence that such notice was issued to the petitioner before removal. Although the petitioner had an obligation to apply for renewal every seven years, the absence of prior notice rendered the removal prejudicial. The court acknowledged that the petitioner’s opportunity to seek review of the removal order had become difficult. Considering the circumstances, the court decided to quash the impugned removal orders to afford the petitioner one more opportunity to apply for renewal, which should be considered in accordance with law.
Holding and Implications
The petition is allowed. The impugned orders dated 11.2.2003 and 22.9.2003 removing the petitioner’s trademark from the Register are quashed.
The petitioner is directed to apply for renewal within one month from receipt of the order, and the renewal application shall be considered lawfully by the concerned authority.
This decision directly benefits the petitioner by restoring the opportunity to renew the trademark but does not establish any new precedent.
H.V.G. Ramesh, J:
1. Petitioner has sought for issuance of a writ of mandamus directing the respondents to restore and renew the Trade Mark 421953 as per class 5 of the Trade & Merchandise Marks Act, 1957 for the period January 1996 till date.
2. Petitioner is a company incorporated under the Companies Act, 1956 manufacturing animal feed and pharmaceuticals and veterinary products under the brand name VETCARE with logo. It is the case of the petitioner that he has applied for grant of patent on 16.8.1984. As per Section 23, such certificate was subsequently issued during 1995. Thereafter, as per the conditions stipulated, once in seven years petitioner had to apply for renewal and accordingly, he had applied for renewal in the year 1996. But the same has not been renewed. Hence, this petition.
3. Heard the counsel for the respective parties.
4. It is the submission of the respondent that the patent was renewed up to 1998 and thereafter, the petitioner ought to have filed renewal application much prior to the expiry of seven years but, the same has not been done. According to the petitioner, the order of removal of the name from the Register has been communicated to him during 2003 and till then, he was kept in the dark though he has filed renewal application along with the requisite fee during 2002.
5. As per Section 25 r/w Rule 69 of the Act, before cancellation/removal of the Trade Mark from the Register, prior notice should be issued. There is no material available to show that such a notice has been issued to the petitioner before such removal. Be that as it may, it was for the petitioner as well to make an application for renewal along with payment of the prescribed fee every seven years so as to retain the patent. Further, though the order of rejection has been communicated, to seek review of the order as contemplated would be rather difficult for the petitioner to assail the said order now.
6. In the absence of any such notice being issued to the petitioner, the order of the respondent authority removing the name of the petitioner from the Register stating that there is non-payment of the renewal fee within the prescribed time would be prejudicial to the petitioner. In the facts and circumstances of the case, to enable the petitioner to make renewal application, one more opportunity could be afforded by quashing the impugned order.
7. Accordingly, the petition is allowed. The impugned orders dated 11.2.2003 -- Annexure H and the endorsement dated 22.9.2003 -- Annexure N are quashed. Petitioner shall apply for renewal before the concerned authority within one month from the date of receipt of this order which shall be considered in accordance with law.
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