Deemed Abandonment In Trade Mark Oppositions: A Note On Ace Foods Pvt. Ltd. V. Registrar Of Trade Marks
Krithika Sathyanandam, Advocate, Practising before the Madras High Court
ABSTRACT
In ACE Foods, the Madras High Court set aside an order treating a trade mark application as abandoned because the applicant’s evidence affidavit, filed in time during the Covid lockdown, carried neither signature nor attestation. The Court said that section 21 of the Trade Marks Act, 1999 attaches deemed abandonment to a missing counter-statement and to nothing else, held Rule 46(2) of the Trade Marks Rules, 2017 ultra vires to that extent or, alternatively, read it down, and then decided the appeal on its facts. Five months later a Division Bench, in V-Guard Industries v. Kangaro Industries, held Rule 45 mandatory and upheld deemed abandonment under Rule 45(2). This note argues that ACE Foods now survives mainly as a decision about a timely but defective filing, and proposes a rule on curing defects and an amendment to section 21 that separates defect from default.
Keywords: Trade Marks Act, 1999; Rule 46; deemed abandonment; delegated legislation; opposition proceedings.
