ITC Limited, the appellant, applied for the mark “DARJEELING LOUNGE” which was advertised on 07.02.2005. Notice of opposition was served on the appellant on 22.12.2005 (which is disputed) by the Tea Board (the respondent). The appellant filed the counter statement on 08.03.2006. Observing that the notice of opposition was served on the appellant on 22.12.2005, the deputy Registrar held that the counter statement was filed beyond the statutory period. Further, as per the impugned order, notice was served vide letter dated 01.08.2008 to show cause why time-barred counter statement should be taken on record. There was no reply. Also, when hearing was fixed on 11.12.2008, no one appeared on behalf of the appellants to show cause why there was a delay in filing the counter statement. Therefore, an order treating the counter statement filed on 08.03.2006 as time barred and abandoning the application in Class 42 was passed after hearing Tea Board (the respondent) and the pleadings. The aforesaid order was challenged before IPAB.
The appellant contended that it did not receive the notice of hearing. Accepting the contention, IPAB gave the benefit of doubt to the appellant for their absence on 11.12.2008. The appellant contended that it received the notice of opposition only on 10.01.2006 and not 22.12.2005 and therefore, the counter statement filed on 08.03.2006 was not time barred. IPAB vide Order dated 5.4.2013 reverted the matter back to the Registrar holding that the appellant shall prove by satisfactory evidence the receipt of notice of opposition on 10.01.2006. The Registrar can pass appropriate orders thereafter.
It is to be noted that IPAB did not examine the merits of the dispute i.e whether the mark is registrable or not. The Registrar was asked to send notices to the parties and decide the matter within 4 months from the date of receipt of the order.