Intellectual Property Appellate Board
Bunge Agribusiness India (P) Ltd. vs Registrar Of Trade Marks And Anr. on 3 December, 2004
Equivalent citations: 2005(31)PTC699(IPAB)
JUDGMENT
S. Jagadeesan, Chairman
1. The petitioner has filed this appeal against the orders of the Deputy Registrar of Trade Marks, New Delhi dated 19.10.1993 and 7.12.1993 allowing the Review Petition filed by the second respondent.
2. The second respondent filed application No. 400158 for registration of the trademark consisting of the label 'LOTUS' Brand with a device of 'Lotus' in respect of Maida, Soojii, Bran & Atta. The said mark was advertised in the Trade Mark Journal 962 dated 1.7.1989 at page 429. The appellant herein filed opposition No. DEL 6464 stating that the mark applied for is contrary to the provisions of Sections 9, 11(a), 12(1) and 18 (1) of the Trade and Merchandise Marks Act, 1958. The Deputy Registrar rejected the application of the second respondent and allowed the opposition of the appellant by order dated 26.2.1993 wherein the Deputy Registrar found that the trademarks of the appellant as well as the second respondent are identical and though the rival goods fall in different classes but they are of the same description and thereby upheld the objection of the appellant under Section 12 (1) of the said Act. The Deputy Registrar further upheld the objection under Section 9 and found that the second respondent had not used the mark Similarly, the Deputy Registrar upheld the objection of the appellant under Section 11(a) as well as Section 18(1) of the Act.
3. Aggrieved by the said order, the second respondent filed the application for review on the ground that the second respondent could not produce the original documents to establish the use of the trade mark. The same Deputy Registrar by his order dated 19.10.1993 allowed the Review Petition finding that the second respondent was not able to produce the original records at the time of hearing of the application and there is sufficient cause for the request of the second respondent for admitting the original documents by may of additional evidence and to review the matter. Having allowed the Review Petition, the Deputy Registrar listed the application for fresh hearing and by order dated 7.12.1993 disallowed the opposition DEL 6464 of the appellant and allowed the application 400158 in class 30 of the second respondent for registration. Aggrieved by the same, the present appeal has been filed.
4. We have heard the arguments of Shri Hemant Singh, the learned Counsel for the appellant. The notices sent to the second respondent were returned unserved with the endorsement 'Left'. Consequently we directed the learned Counsel for the appellant to take notice to the second respondent by way of substitute of service by publishing in the Newspaper. The learned Counsel for the appellant filed proof of publication by filing the Hindi Newspaper 'Dainik Jagaran' (Jalandhar-Amritsar-Phillaur and Ludhiana Edition) and English Newspaper' The Tribune' (Chandigarh Edition).
5. The main contention of the learned Counsel for the appellant is that the Deputy Registrar by his earlier order allowed the opposition filed by the appellant by upholding all the objections raised by the appellant under Sections 9, 11(a), 12(1) and 18(1) of the said Act. The Review Petition has been filed only on the ground that the original documents were not filed at the time of hearing of the application and second respondent having got the possession of the original documents wants to produce the same by way of additional evidence and on the basis of those documents, the matter can be reviewed. The impugned order of the Deputy Registrar does not disclose the particulars of any original document of the second respondent. The earlier order has been reviewed only on the basis that the mark is a common dictionary word and as such, the appellant cannot claim monopolistic rights. Further, the Deputy Registrar has found that the goods of the second respondent have nothing to do with the goods of the appellant as both are different and consequently the Deputy Registrar had observed that there is no need for any detailed discussion and allowed the Review Petition. The impugned order is contrary to law as the grounds made out in the Review Petition were not the issues discussed by Deputy Registrar in his impugned order. Further, it was contented that the review can be done only to correct the mistake and not otherwise.
6. We find some force in the contention of the learned Counsel for the appellant. As stated already, by order dated 26.2.1993, the Deputy Registrar upheld the opposition of the appellant finding that the second respondent's trademark offends Sections 12(1), 9, 11(a) as well as 18(1) of the said Act. In the Review Petition, the Deputy Registrar was persuaded to review the earlier order only on the ground that the second respondent could not produce the material evidence, which is very clear from the following passage of the order of the Deputy Registrar in his order dated 19.10.1993:
The discovery of evidence by the applicants is an important law point. This evident was not present in the Trade Marks Registry when order dated 26.2.1993 was passed by the Ld. Deputy Registrar of Trade Marks. Now, by exercise of due diligence the evidence in original has been made available to the Trade Marks Registry. Had this evidence been filed prior to order dated 26.2.1993 the fate of this case could have been altered. The grounds of the review petition are reasonable, convincing and relevant. Hence, it is a fit case to allow the said Review Petition.
In view of the above, following order is passed:
1. That the Review Petition filed on 26.4.1993 is allowed;
2. That the order dated 26.2.1993 stands set aside;
3. That the main Opposition No. DEL-6464 shall come up for hearing on 3rd November, 1993.
7. However, when the application was re-heard, the Deputy Registrar found that the impugned mark is a common dictionary word and the appellant cannot claim any right on the mark and further found that the appellant's goods are different from that of the second respondent's goods. In the review proceedings, the Deputy Registrar has taken a totally a different view contrary to the one taken in the original order. This has been done without discussing the additional evidence produced by the appellant. Now it is for us to consider whether the Deputy Registrar can pass such orders by way of Review.
8. Section 97(c) of the Trade and Merchandise Marks Act, 1958 deals with the power of the Deputy Registrar to review his own decision. Rule 115 of the Rules framed under the said Act prescribes the procedure for filing the Review Application. Though the power of the Deputy Registrar has not been prescribed in detail, we are of the view that to decide the power of review, we can have the assistance of the principles laid down by the Supreme Court dealing with the Order XLVII, Rule 1, CPC. It may be worth to have a look at the provision first so that the said provision is also in the same line except mentioning the cost to the aggrieved person to seek for the review, Order XLVII Rule 1 is as follows:-
Rule 1. Application for review of Judgment.-- (1) Any person considering himself aggrieved--
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes, and who from the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the fact of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of judgment to the Court which passed the decree or made the order.
While interpreting this provision, the Supreme Court of India in a leading case in Parsion Devi and Ors. v. Sumita Devi and Ors., has held as follows:-
9. Under Order 47, Rule 1, C.P.C. a judgment may be open to review inter alia if there is a mistake or an error apparent on the fact of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise it power to review under Order 47, Rule 1, C.P.C. In exercise of the jurisdiction under Order 47, Rule 1, C.P.C. it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise.
9. The learned Judges of the Apex Court placed reliance on the earlier Judgment in Thungabhadra Industries Ltd. v. The Government of Andhra Pradesh, 1985 (5) SCR 174 at 186 and also the other judgment in Smt. Meera Bhanjia v. Smt. Nirmala Kumari Choudhury, 1985 (1) SCC 170 quoting with approval a passage from Abhiram Taleshwar Sharma v. Abhiram Pishak Sharma and Ors., . On the above principles, it is clear that the Review is permitted only to correct an error apparent on the face of the records. Even if such an error is to be found out by a process of reasoning, then the Review cannot be made themselves because the learned Judges are of the view that the Review is in no means an appeal in disguise whereby an erroneous decision is reheard and corrected but Review lies only for correction of factual error. With the assistance of the above principle, if we look at the impugned order of the Deputy Registrar, we are of the view that the Deputy Registrar had set aside the earlier order under the guise of Review that too without referring to any fresh material produced by the appellant but taking a different view from the earlier one. In our well considered opinion, the Deputy Registrar is not correct in reviewing his earlier order to take a different view from the earlier one and set aside the same and thereby passing a totally new order with different reasons. The Deputy Registrar, in the words of the Apex Court, has assumed the jurisdiction of the appellate authority instead of discharging his function as the original authority limiting the jurisdiction of the power of review. Consequently the impugned orders of the Deputy Registrar dated 7th December 1993 and 19th October 1993 in application No. 400158 of the second respondent are liable to be set aside and accordingly are set aside. The appeal is allowed. No cost.