This appeal under section 76 of the Trade Marks Act, 1940 read with Rule 84 of the Revised Trade Marks Rules, 1963 challenges the validity of an order passed by the Assistant Registrar of Trade Marks Karachi on 30-10-1989.
2. The respondent M/s. Bela Ghee Mills Ltd. Hub applied for a trade mark comprising the words "SASSI GHEE" in respect of vegetable oil and Ghee. Appellant Nestle Italian S.P.A., filed opposition against the same. The opposition was, therefore, rejected and the respondent's application was allowed to proceed for registration.
3. Appellant's counsel has taken a preliminary objection to the delegation of powers by the Registrar to Asst. Registrar and has contended that the Registrar could not competently delegate the powers to an Assistant Registrar, who was a subordinate Officer other than Deputy Registrar.
4. In this connection it will be useful to reproduce subsections (2-A) and (2-B) of section 4 of the Trade Marks Act, 1940, which is as under: "(2-A) The Central Government shall appoint one or more Deputy Registrars of Trade Marks to discharge under the superintendence and direction of the Registrar such functions of the Registrar under this Act as he may from time to time authorize them to discharge; and any reference in this act to the Registrar shall include a reference to any Deputy Registrar when so discharging any such functions.
(2-B) The Central Government may by notification in the official Gazette authorize the Registrar to delegate any particular functions of the Registrar to officers other than the Deputy Registrars of Trade Marks.
A bare perusal of these two subsections would show that whereas subsection (2-A) empowers the Registrar to authorize the Deputy Registrars to discharge such functions under his supervision and direction as he may from time to time authorize them to discharge, whereas subsection (2-B) empowers the Federal Governmentto authorize the Registrar to delegate any particular functions of the Registrar to officers other than Deputy Registrar of Trade Marks. In other words whereas in subsection (2-A) the Registrar has to specify that functions which are to be discharged by the Deputy Registrar, under subsection (2-11) the Federal Government has to specify the functions which a Registrar may delegate to an Officer other than the Deputy Registrar. .
5. There is no appearance for the respondents and therefore no notification was brought to my notice other than Notification dated 9-5-1951 of the Ministry of Commerce & Education (Commerce Division) of the Government of Pakistan published in Gazette of Pakistan extraordinary, which was brought to my notice by the appellants' counsel and is reproduced in the unreported decision of Supreme Court in Civil Appeal No.135-K of 1987 (Registrar of Trade Marks v. Walter Rae Neuter 01 Undo Felt AG) which reads as under:- "In exercise of the powers conferred by subsection (2-13) of section 4 of the Trade Marks Act, 1940 (V of 1940), the Central Government is pleased to authorize the Registrar of Trade Marks to delegate any particular functions of the Registrar to an officer other than the Deputy Registrar of Trade Marks".
This Notification does not specify the function of deciding an application under section 10 of the Trade Marks Act and as a matter of fact it does not specify any particular function or functions of the Registrar which could be delegated by him to officers other than Dye. Registrar. Hence it would appear that the Assistant Registrar was not lawfully delegated the authority to deal with and decide the application of registration filed by the respondent. The impugned Order is, therefore, illegal, ultra vireos, without jurisdiction and coram-non--judice. In this connection reliance is placed in the unreported decision in the case of Registrar of Trade Marks v. Walter Rae Neuter 01 Undo Felt AG (supra) where in similar circumstances an order passed by the Examiner of Trade Marks was held to be unlawful and without jurisdiction. It will be useful to reproduce the following observations from the above decision as under:- "7. A reference may also be made to subsection (2-A) of section 4 where under the Federal Government is authorized to appoint one or more Deputy Registrars to discharge such functions of the Registrar under the Act as the Registrar may from time to time authorise them to discharge and any reference in the Act to the Registrar shall include a reference to any Deputy Registrar when so discharging any such functions. In subsection (2-A) entirely different language has been used by the Legislature as compared to the language used in subsection (2-B). The intention of the Legislature appears to be clear.
Under subsection (2-A), no notification of the Federal Government is required and the Registrar is empowered to direct the Deputy Registrars to perform such functions of the Registrar under the Act as the Registrar may from time to time authorize them to discharge. As observed, it has also been provided in subsection (2-A) that any reference in the Act to the Registrar shall include a reference to any Deputy Registrar when so discharging any such function.
On the other hand under subsection (2-13), the Registrar can delegate only such functions to other officers which are specified by the Federal Government in the notification required to be issued in the official Gazette".
Hence I allow the appeal and set aside the impugned order and remand the case to Registrar, Trade Marks for fresh decision in the light of this judgment.