(1986) 3 CLR 2232
[*2232] 1986 May 31
[TRIANTAFYLLIDES, P]
IN THE MATTER OF ARTICLE 146 OF THE CONSTITUTION
DAVIDOFF COMMERCIO E INDUSTRIA LIMITATA,
Applicants,
v.
THE REPUBLIC OF CYPRUS, THROUGH
THE REGISTRAR OF TRADE MARKS,
Respondent.
(Case No. 517/84).
Administrative Law—Due inquiry—Trade marks —Application for removal of, from Register—Case heard in owners' absence and judgment reserved—Request by owners to intervene and submit evidence made after judgment was reserved—Request refused by respondent Registrar—Refusal resulted in depriving him of having before him all material facts and, thus, conduct a due inquiry—Application for removal granted—Annulled for lack of due inquiry.
The interested parties in this recourse applied for the removal from the register of trade marks of applicants trade mark “DAVIDOFF” and for registration of “Davidoff” as their trade marks in respect of goods very similar to those in respect of which "DAVIDOFF" had been registered.
By letter dated 15.5.84 the respondent informed the applicants' agents of the proceedings for the removal of “DAVIDOFF” and that the hearing would take place on 27.6.84, but as, apparently, the authorisation of such agents had ended, they did not take any steps in the matter. [*2233]
On 27.6.84 the respondent, having heard the case in applicants' absence, reserved judgment. Shortly thereafter applicants' agents accompanied by counsel appeared, but they were informed that judgment had already been reserved.
By letter dated 28.6.84 the applicants asked for an opportunity of submitting evidence, but the respondent Registrar turned down the request and, eventually, issued the sub judice decision, whereby he granted the application for the removal of "DAVIDOFF".
Hence the present recourse.
Held, annulling the sub judice decision: (1) Even if the proceedings were conducted procedurally in accordance with the Trade Marks Rules, this Court is of the opinion that the refusal of the respondent to allow the applicants to intervene and submit evidence prevented him from having before him all relevant material and, thus, he was deprived of the opportunity to conduct a due inquiry.
(2) Lack of due inquiry results in the invalidity of the relevant decision.
Sub judice decision annulled.
No order as to costs.
Cases referred to:
Argyrou v. The Republic (1985) 3 C.L.R. 559;
Morris v. The Registrar of Trade Marks (1985) 3 C.L.R. 732;
Roc International S.A. v. The Republic (1984) 3 C.L.R. 219;
Vorkas v. The Republic (1982) 3 C.L.R. 309;
Nicolaou v. The Republic (1970) 3 C.L.R. 250;
Frangides v. The Republic (1968) 3 C.L.R. 90.
Recourse.
Recourse against the decision of the respondent to remove [*2234] from the register of the trade marks applicants' trade mark "DAVIDOFF".
A. Dikigoropoulos, for the applicant.
St: loannidou for the respondent.
Chr. Theodoulou, for interested party.
Cur. adv. vult
TRIANTAFYLLIDES P. read the following judgment. By means of the present recourse the applicants are challenging the decision of the respondent Registrar of Trade Marks to remove from the register of trade marks the applicants' trade mark "DAVIDOFF".
The said decision was communicated to the applicants by a letter dated 16th July 1984.
The applicants are a limited liability company incorporated under the law of Brazil.
On the 25th April 1979 the duly authorised agents of the applicants in Cyprus had applied to the respondent for the registration of the applicants' aforesaid mark "DAVIDOFF".
The applicants' application was accepted on the 7th June 1979, it was advertised in the Official Gazette of the Republic on the 12th October 1979 and a certificate of registration of the trade mark was issued on the 22nd October 1980.
By means of an application dated the 22nd December 1983 Davidoff et Cie of Switzerland—the interested party in the present proceedings—applied, through their agent in Cyprus, for the removal from the register of the applicants' aforementioned trade mark; and on the 5th January 1984, they, also, applied to the respondent for the registration of the word "Davidoff" as a trade mark in respect of goods which were very much similar to those in respect of which the applicants' trade mark "DAVIDOFF" had been registered. [*2235]
Eventually, the respondent wrote on the 15th May 1985 to the agents of the applicants informing them of the pending proceedings for the removal from the register of the registration of the trade mark of the applicants and that the hearing before him in relation to this matter would take place on the 27th June 1984; but as, apparently, the authorization of such agents had ended they did not take any steps in the matter.
On the 27th June 1984 counsel who was acting, also, as the agent for the interested party appeared before, and was heard by, the respondent, who reserved his decision; and, then, shortly afterwards, the agents of the applicants accompanied by counsel turned up and were informed that the case had been concluded and the decision of respondent had been reserved.
The applicants by means of a letter dated the 28th June 1984 objected to the course followed by the respondent and applied through another counsel to be afforded the opportunity to submit evidence in support of the registration of their trade mark "DAVIDOFF".
On the 16th July 1984 counsel for the applicants was informed by the Registrar that he had come to the conclusion that the applicants had no legal right to intervene in the proceedings; and the respondent issued on the same date his sub judice decision by means of which he granted the application for the removal from the register of the trade mark of the applicants.
Even if, from the strictly procedural point of view, the proceedings before the respondent were conducted in accordance with the Trade Marks Rules, I am of the opinion that the refusal of the respondent to allow the applicants to intervene in the proceedings, and in particular to submit evidence in support of the registration of their trade mark, even after he had reserved his decision, prevented the respondent from having before him all relevant material and, thus, he was deprived of the possibility of making a due inquiry in relation to the application of the interested party for the removal from the register of the trade mark of the applicants. [*2236]
It is well established that lack of due inquiry on the part of an administrative organ results in the invalidity of its relevant decision (see. inter alia, in this respect, Argyrou v. The Republic, (1985) 3 C.L.R. 559, 570, 571, Morris v. The Registrar of Trade Marks, (1985) 3 C.L.R. 732, 737, 738, Roc International S.A. v. The Republic, (1984) 3 C.L.R. 219, 224, 225 and Vorkas v. The Republic, (1982) 3 C.L.R. 309, 315).
Useful guidance, in this respect, may be derived, too, from the cases of Nicolaou v. The Republic, (1970) 3 C.L.R. 250, 254, and Frangides v. The Republic, (1968) 3 C.L.R. 90, 102, where it was held that the failure to afford to the applicants in those cases the opportunity to be heard resulted in decision having been reached without sufficient inquiry into all material aspects.
In the light of the foregoing the sub judice decision of the respondent is hereby annulled as having been reached without due inquiry; but I shall not make any order as to the costs of this case.
Sub judice decision annulled.
No order as to costs.
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