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Issues: (i) Whether the Registrar could remove a trade mark from the register for non-payment of renewal fee without first issuing the prescribed notice in Form O-3 under the statutory scheme; (ii) Whether, where removal was made without following the prescribed procedure, the application for restoration and renewal could be treated as barred by limitation under the renewal-restoration provisions.
Issue (i): Whether the Registrar could remove a trade mark from the register for non-payment of renewal fee without first issuing the prescribed notice in Form O-3 under the statutory scheme.
Analysis: The statutory scheme under Section 25 and Rules 66 to 70 links duration, renewal, removal, restoration, notice, and advertisement as one integrated process. Section 25(3) requires the Registrar to send the prescribed notice before removal, and removal follows only if the proprietor does not comply after that notice period. The placement of the rules and the language used show that removal is not an automatic consequence of mere expiry of the registration period. Since removal extinguishes a valuable property right and carries civil consequences, the prescribed procedure must be strictly followed. A rule framed under the Act cannot override the parent provision, and the omission to issue the notice cannot be treated as a mere irregularity.
Conclusion: The notice in Form O-3 was mandatory, and removal without issuing it was invalid.
Issue (ii): Whether, where removal was made without following the prescribed procedure, the application for restoration and renewal could be treated as barred by limitation under the renewal-restoration provisions.
Analysis: Section 25(4) prescribes a one-year period for restoration from the expiration of the last registration, but that limitation operates in a proper case of removal under the statutory process. Where the trade mark was removed without compliance with Section 25(3) and Rule 67, the statutory bar based on the one-year period could not be invoked against the proprietor. Section 26 also supports this construction by recognising the continuing relevance of a removed mark for a further period after removal, which would be rendered redundant if the right to seek restoration were treated as extinguished merely by lapse of time from expiration. The Court also declined to interfere with the finding that no Form O-3 notice had been given.
Conclusion: The restoration and renewal application was not time-barred on the facts of the case.
Final Conclusion: The appeal was rejected, and the direction for renewal was maintained in modified form by requiring the Registrar to verify proprietary succession and absence of intervening conflicting registrations before restoring and renewing the mark.
Ratio Decidendi: Where the statute prescribes notice as a condition precedent to removal of a registered trade mark, removal without that notice is unlawful, and the limitation for restoration cannot be applied to defeat a proprietor's request for renewal arising from such invalid removal.
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