Delhi HC Restores Kumar Equipments’ ‘KEI-KUMAR EQUIPMENT INDIA’ Registration After KEI Industries Missed Evidence Deadline Despite Service On Its Lawyer

The Appellant applied to register “KEI-KUMAR EQUIPMENT INDIA” in Class 11.

Respondent No. 2 opposed the application but did not file evidence or notify the Registrar of its intention to rely on the facts in its notice of opposition within the two-month period under Rule 45(1) of the Trade Marks Rules, 2017.

The Registrar treated the opposition as abandoned under Rule 45(2) and the mark was registered.

On review, Respondent No. 2 asserted that it and its former attorney had not received the counter statement or hearing notice.

The Registrar allowed the review, set aside the abandonment order and granted a further opportunity to file evidence.

The Appellant appealed under Section 91 of the Trade Marks Act, 1999.

Section 21(3) of the Trade Marks Act requires the Registrar to serve the applicant’s counter statement on the opponent; Rule 45(1) requires the opponent, within two months of service, either to file evidence or to notify the Registrar and applicant of its intention to rely on the facts pleaded in the notice of opposition, and Rule 45(2) deems the opposition abandoned if neither step is taken.

The Court treated this period as mandatory and held that the Rules provide no extension; review under Section 127(c) cannot be used to grant additional time unavailable under Rule 45.

Under Section 23(1), an accepted application may proceed to registration where the opposition has been decided in the applicant’s favour or no opposition remains; Section 57 provides a rectification remedy for challenges to the register.

The Court held that the principle in *Rafiq v. Munshilal*, (1981) 2 SCC 788—that a litigant should not suffer for counsel’s mistake—could not override the statutory deeming provision.

The Registry’s record showed that the counter statement had been dispatched and served on Respondent No. 2’s attorney on record, a fact Respondent No. 2 did not dispute.

The Registrar nevertheless treated actual receipt by Respondent No. 2 as necessary, contrary to the Registrar’s position that service did not depend on proof of actual receipt or acknowledgment.

Respondent No. 2’s manager’s affidavit did not rebut the recorded service; despite the review petition’s statement that the former attorney’s affidavit would be filed, none was produced.

The Court drew an adverse inference and held that a breakdown in communication between a party and its appointed attorney did not amount to non-service.

Once the two-month period expired without either step required by Rule 45(1), abandonment followed by operation of Rule 45(2); the Registrar could not use review to extend the period.

With the opposition abandoned, the application could proceed to registration, and objections concerning the examination of the application could not be reopened through review of the abandonment order.

The Court did not determine the substantive merits of the competing marks.

It restored the registration granted to the Appellant and directed the Registrar to make the requisite register entries; evidence filed by Respondent No. 2 pursuant to the review order was not to be taken on record.

The Court left the parties’ substantive rights and contentions open and clarified that Respondent No. 2 could pursue any remedy available under law, including rectification.

Pending applications were disposed of.