Amrit Corp. Limited vs The Registrar Of Trade Marks on 13 December, 2022

[Cites 5, Cited by 1]

Delhi High Court - Orders

Amrit Corp. Limited vs The Registrar Of Trade Marks on 13 December, 2022

1. The present appeal under Section 91 of Trademarks Act, 1999 [hereinafter "the Act"] impugns order dated 06th March, 2019, whereby Appellant's application for registration of trademark "JUST" under class 29 (bearing application No. 2909693), has been refused [hereinafter, "refusal order"] and also order dated 26th September, 2019, dismissing review against the refusal order [hereinafter, "review order"], both passed by Senior Examiner of Trademarks.

2. Appellant applied for registration of following label mark "JUST MILK", claiming use thereof in respect of milk, since 30th April, 2011:

Signature Not Verified Digitally Signed C.A.(COMM.IPD-TM) 55/2021 Page 1 of 4 By:SAPNA SETHI Signing Date:15.12.2022 17:36:21

3. The examination report dated 22nd April, 2016, cited following two conflicting marks:

4. The operative portion of refusal order reads as under:

"The trade mark applied for is objectionable under Section 9/11 of the Act. The application is accordingly refused."

5. In review, refusal order was confirmed for following reasons:

"The law has made clear distinction between what is an erroneous decision and an error apparent on the face of the record. While the first can be corrected by a higher forum, the latter can be corrected by exercise of review jurisdiction. It is a settled principle of law that a Review Petition has a limited purpose that cannot be allowed to be an appeal in disguise. The similar views was also held by the Signature Not Verified Digitally Signed C.A.(COMM.IPD-TM) 55/2021 Page 2 of 4 By:SAPNA SETHI Signing Date:15.12.2022 17:36:21 various High Courts of States and Hon'ble Supreme Court in various cases. Hon'ble Supreme Court in Lily Thomas & Ors. vs. Union of India & Ors. [(2000)

6 SCC 224] held view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not a ground for review...." Hon'ble High Court of Kerala in Saramma V. Mathew in 2001 (1) KLJ 521 observed that 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 record justifying the court to exercise its power of review. The Review petitioner during the proceedings vide his submissions has failed to point out any error apparent on the face of record or otherwise and also fail to justify on what basis the new grounds and new facts can be considered under the present proceeding. There is neither any mistake nor any error apparent on the face of record nor there is any discovery of any new and important matter or evidence, which could not have been discovered earlier of which was not within the knowledge of the review petitioner. In the light of the above, there is no substance in the present Review Petition, the Review Petitioner cannot be permitted to reopen the concluded judgment and accordingly, the Review Petition is not maintainable and therefore dismissed.

The request on form TM-M is accordingly Refused."

6. Counsel for Appellant submits that cited marks as per the examination report would not come in way of Appellant as application No. 2501527 has been abandoned; mark under application No. 2871271 belongs to Appellant itself. He states that these facts were brought to the notice of Respondent in its reply dated 14th May, 2016. Further, owing to long continuous use since 15th July, 2007, Appellant has also obtained registration of "JUST" word mark under class 30 vide application No. 2308478.

7. The Court has considered the above-noted submissions as well as the documents placed on record. On the anvil of Section 11 of the Trademarks Act, since the conflicting mark has been abandoned, the objection no longer survives. Insofar as objection under Section 9 of the Act is concerned, use of word "JUST" in respect of milk is arbitrary and as such, label mark "JUST MILK", being a combination of two words "JUST" and "MILK", cannot be said to be lacking distinctiveness. It can also not be overlooked that the Signature Not Verified Digitally Signed C.A.(COMM.IPD-TM) 55/2021 Page 3 of 4 By:SAPNA SETHI Signing Date:15.12.2022 17:36:21 Appellant holds registration of "JUST" wordmark under classes 29 and 30 in respect of milk/ milk products.

8. In light of the above, present appeal is allowed with following directions:

(a) The impugned orders dated 06th March, 2019 and 26th September, 2019 are set aside.

(b) Trademark Registry is directed to process the registration application for the subject mark and proceed to advertisement of the label mark "JUST MILK" (under application No. 2909693), within a period of three months from today.

(c) If there is any opposition, the same shall be decided on its own merits, uninfluenced by observations made hereinabove.

(d) It is clarified that label mark "JUST MILK" shall not grant any exclusive rights in the word "MILK". This disclaimer shall be reflected in the trade marks journal at the time of advertisement and also if the subject mark ultimately proceeds for registration.

9. The observations made hereinabove shall not affect rights, if any, arising out of assignment of trademark by Appellant to Bunge India Pvt. Ltd., as noted in the review order.

10. With the above directions, the appeal is disposed of along with pending application(s), if any.

11. Registry is directed to supply a copy of the present order to the Trademark Registry at [email protected] for compliance.

SANJEEV NARULA, J DECEMBER 13, 2022/nc Signature Not Verified Digitally Signed C.A.(COMM.IPD-TM) 55/2021 Page 4 of 4 By:SAPNA SETHI Signing Date:15.12.2022 17:36:21

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Delhi High Court - Orders