Judgment:
ORDER (No.202/2009)
S. Usha, Vice-Chairman:
1. Original appeal Nos. 24-28/08/TM/CH are against the orders of the Assistant Registrar of Trade Marks dated 18.07.2007 rejecting the review petition filed on Form TM-57.
2. The brief facts of the case are: -
The appellant herein is one of the largest companies operating in the Telecommunication arena, actively involved in the Indian Industry. The appellant filed applications for registration of their Trade Marks under the provisions of the Trade Marks Act, 1999 (hereinafter referred to as the Act) as under:
Sl.No.
Mark
Applica-tion No.
Date
Class
Goods
1
MUSICFLO
1238183
18.09.03
38
Audio, visual and data production, transmission and receiver services, namely, audio, visual and data processing services, satellite and terrestrial communication systems, network systems and wireless communications systems.
2
MOVIEFLO
1212626
0707.03
9
Audio, visual and data processing apparatus namely, network, management, transmission and receiver systems comprising hardware, software, distribution and/or playback of data information via satellite and terrestrial communication systems, network systems and wireless communications systems.
3
DATAFLO
121211
02.70.03
9
Data processing apparatus namely network, management, transmission and receiver systems comprising hardware and software distribution and/or playback of data information via satellite and terrestrial communication systems, network systems and wireless communications systems.
4
AUDIOFLO
1238191
19.09.03
38
Audio production, transmission and receiver services, namely audio processing services, satellite and terrestrial communication systems, network systems and wireless communication systems.
5
MUSICFLO
1212627
07.07.03
9
Audio, visual and data processing apparatus namely, network, management, transmission and receiver systems comprising hardware, software, distribution and/or playback of audio, visual, and data information via satellite and terrestrial communication systems, network systems and wireless communications systems.
3. The applications were examined and examination report was issued. The examiner had raised objections under section 9 of the Act and directed amendment to the specification of goods in application Nos. 1238183, 1212626 and 1212627. The examiner had raised objections under sections 9 and 11 of the Act in application No. 1211211. In application No. 1238191 the examiner had raised objections under section 9 and imposed an association condition with trade mark application Nos. 1238185 and 1238190.
4. The appellant filed the reply to the examination report stating that as per the provisions of the Trade Marks Act a trade mark should not be split but considered in its entirety. The trade marks sought to be registered are not descriptive of the goods. In response to the objection under section 11 of the Act, the appellant stated that the conflicting trade mark DATAFLO under application No. 524229 was in respect of different goods and so the objection was not maintainable. The appellant had agreed to association condition.
5. Thereafter the matter was set down for hearing and the appellants herein appeared before the Assistant Registrar and advanced their arguments and also filed certain documents during the course of arguments. The Assistant Registrar heard the matter and passed an order rejecting the application for registration under section 9 of the Act without giving any reasons. The appellants herein filed a review petition against the said orders to review the order of rejection in the interest of justice, equity and good conscience and to accept the trade mark.
6. The Assistant Registrar heard the appellant/review petitioner and passed the impugned order on the grounds that there is no error apparent or some now or important facts have come which could not be placed inspite of due diligence and dismissed the review petition. The Assistant Registrar has further given reasons for rejecting the application under the provisions of section 9 of the Act, even though the petition was only to review the order of rejection.
7. Aggrieved by the said orders the appellant is before us on appeal. The grounds of appeal are:-
(a) The respondent erred in rejecting the review petition without hearing the appellant which is in violation of the principles of natural justice.
(b) The respondents finding that the appellant has resorted to filing the review petition in order to circumvent the official fee for appeal is contrary to the provisions of law.
(c) The respondent erred in not considering and applying its own precedents wherein it had allowed the appellants application for the mark VIDEOFLO AND MOVIEFLO.
(d) The respondent erred in considering that the impugned trade mark is highly descriptive failing to see that the trade mark is an invented word having no direct reference to the character or quality of the goods.
(e) The respondent erred in not considering the fact that the appellants trade mark being inherently distinctive has also acquired sufficient reputation in India and abroad.
(f) The respondent failed to take into account the fact that the mark has been registered in various other countries outside India.
(g) The order is in violation of the established principles of law, judgements and provisions of the Act.
(h) The respondent erred in not allowing the application to proceed to advertisement.
8. We have heard the arguments of Ms. Shobana Kumar, learned counsel appearing for the appellant on 18.08.2009 at Chennai. All the five matters were heard together as the parties are the same and issue to be decided is one and the same and a common order is passed.
9. The learned counsel for the appellant contended that the respondent was wrong in passing the impugned order. The respondent has wrongly held that the trade mark is descriptive of the goods and rejected registration under the provisions of section 9 and 11 of the Act. The trade mark should not be split but must be considered as a whole.
10. The counsel relied on the judgement 1986 (6) PTC 23 (Del.) Globe Super Parts vs. Blue Super Flame Industries and another in support of her contention that the trade marks are new, invented and adopted to make their goods distinctive and that to say that it is descriptive is not correct. The goods bearing the impugned trade mark has acquired reputation and goodwill among the public. The trade marks, therefore, be accepted and mark be advertised in the Trade Marks Journal.
11. We have carefully considered the arguments of the counsel for the appellant and have gone through the records. On a bare perusal of the records, it is clear that the impugned order is passed in the review petition along with the reasoning for rejecting the application for registration though no prayer was made in the petition as to rejection of the application. In fact, the main ground for the review petition was based on the merits of the application and not as to the error or mistake committed to be reviewed as per the provisions of Order 47 Rule I of the CPC.
12. The Supreme Court of India while interpreting the provisions of Order 47 Rule I of the CPC has held in a leading case in Parison Devi and ors. Vs. Sumita Devi and ors. 1997 (8) SCC 715 â
â9. Under Or 47 R I CPC, judgement may be open to review inter-alia if there is a mistake or an error apparent on the face 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 its power to review under Or 47 R I CPC. In exercise of the jurisdiction under Or 47 R I CPC it is not permissible for an erroneous decision to be reheard and corrected. A review petition, it must be remembered for a limited purpose and cannot be allowed to be an appeal in disguise.â
13. In view of the above principle, in the instant case on hand, the appellant had sought for the review of the order not due to an error but based on the merits of the main case, which cannot be reviewed. We, therefore, are of the view that the Assistant Registrar was correct in dismissing the review petition.
14. We agree with the finding of the Assistant Registrar for refusal of the application for registration under section 9 of the Act. Mere acceptance of similar marks in other classes as submitted by the appellant cannot be accepted as it does not confer any right on the appellant to get the mark registered. With regard to the submission that similar marks are already registered in other countries outside India, we are not aware under what circumstances and facts the marks were registered abroad. In order to preserve the purity of the Register in public interest the Registrar has refused the registration. The impugned trade marks are only proposed to be used and as such the marks are not distinctive or capable of being distinguished. The onus cast on the appellant to prove that the mark is distinctive has not been discharged. The other ground that the appellant was not heard is also rejected as the Assistant Registrar has recorded the presence of the appellant in the impugned order, which has not been denied by the appellant except for a bald statement that no opportunity was given to the appellant to advance their arguments.
15. We, therefore, find no infirmity in the order and uphold the impugned order. The appeals, in view of the above, are dismissed with no order as to costs.