(Circuit Bench at Ahmedabad)
HON'BLE SHRI Z.S.NEGI, VICE- CHAIRMAN:
This is an appeal under section 91 of the Trade Marks Act, 1999 (hereinafter referred to as the Act) directed against the order dated 5.5.2005 passed by the Assistant Registrar of Trade Marks, Ahmedabad whereby she dismissed the review petitions.
2. It is averred that the appellant is a registered partnership firm engaged in the business of manufacturing, marketing and selling wide range of tea since 1973. The appellant is a very reputed and well-known manufacturer and its goods have acquired tremendous reputation amongst public due to its good quality and wide networking in India. The appellant is the registered proprietor of trade mark âJIVRAJ in vernacular under No. 360701 in class 30 which is valid and subsisting. The appellant is also having copyright registration in respect of artistic works under Nos. A-527209/95, A-543489/98 and A-565539/99.
3. The respondent No.1 had sought registration of trade mark âJIVRAJ in vernacular by filing application No. 603032B dated 30.7.1993 with user claimed since December 1991 in respect of tea, coffee, milk powder, bakery products, biscuits, bread, farsan, snacks, honey, backing powder, sauces, sugar, cakes, wafers, food as included in class 30 and the said application was advertised in the Trade Marks Journal No. 1235 dated 16.11.2000 at page No. 3403. The appellant filed notice of opposition dated 15.2.2000 and the respondent No.1 filed the counter-statement dated 19.5.2000 and a copy of such counter-statement was served upon the appellant by letter dated 18.7.2003.
4. The appellant by filing Form TM-56 on 24.7.2003 sought extension of two months time for filing evidence in support of opposition on which the Registrar did not pass any order. Subsequently, the Assistant Registrar passed order treating the application deemed to have been abandoned under section 21 of the Act. The communication regarding passing order of abandonment was issued to the appellant by letter dated 27.1.2004 without taking into consideration of the affidavit of appellant which was already on the record of the Trade Marks Registry. Aggrieved by the abandonment order, the appellant filed review petition on 11.2.2004 and prayed for restoration of the opposition and to afford hearing; the Assistant Registrar, after affording hearing in the matter, dismissed the review petitions and hence this appeal.
5. This appeal has been filed on various grounds which are, inter alia, that the order dated 5.5.2005 is contrary to law and against the basic principle of natural justice, the procedure adopted therein is in violation of such principle and the order is contrary to the facts of the case and material available on record as well as the applicable provisions of law ; that the appellant is openly, exclusively, continuously and uninterruptedly using its registered trade mark since 1976; that the Assistant Registrar failed to appreciate the fact that the appellants user claimed is since 1973 which is much prior to the respondent No.1; that the Assistant Registrar failed to pass any order on the Form TM-56 for extension of time for filing evidence; that the Assistant Registrar has failed to appreciate the evidence and decided the opposition without taking into consideration any evidence; that the Assistant Registrar failed to take into consideration the evidence filed by the appellant which was already on the record before filing of review petition and before the abandonment order communicated to the appellant and that the impugned order dated 11.12.2003 passed in the opposition and order dated 5.5.2005 in the review petitions be set aside.
6. After completion of procedural requirements, the appeal came up for hearing before us on 19.2.2008 at the Circuit Bench sitting at Ahemedabad when Ms. Sonal Y. Shah, Advocate appeared on behalf of the appellant and Shri Jatin Y. Trivedi, Advocate appeared on behalf of the respondent No.1.
7. Ms. Sonal, leaned counsel for the appellant submitted that the appellant is engaged in the business of manufacturing, marketing and selling wide range of tea since 1973 and using the trade mark since 1976 uninterruptedly, extensively and continuously, whereas the respondent No.1 in its application No.603032B for registration of trade mark has claimed user since December 1991 and as such the appellant is prior user of the mark, consequently, the respondent No.1 is not entitled for registration of identical mark. She submitted that the Registrar ought to have granted extension of time in exercise of the discretionary power vested in the Registrar. Instead of granting extension of time, the Assistant Registrar passed the deemed abandonment order on 11.12.2003 only on technical grounds and communicated such order to the Advocate for the appellant by letter dated 27.1.2004. By drawing our attention to paras 3 and 4 of the grounds and facts of the application for review she submitted that the Registrar has not passed the order on any of the applications on Forms TM-56 and, before the said order was communicated, the evidence was already on the record and therefore as per various judgments of the Apex Court and High Court, evidence produced at later stage should be considered in the interest of natural justice. A prayer was, therefore, made to the Honble tribunal to consider the evidence produced by the appellant and to proceed in the matter accordingly in the interest of justice but the application for review has been dismissed by the Assistant Registrar. The learned counsel in support of her submissions relied upon the decision in Wyeth Holdings Corpn.and Another v. Controller General of Patents, Designs and Trade Marks, 2007 (34) PTC 1 (Guj.), Donaldson Filtration Deutschland GmbH v. Assistant Registrar of Trade Marks and Anr., 2007 (34) PTC 716 (IPAB) and Ramgopal Soap Factory v. Tata Oil Mills Company Limited and Anr., 2006 (32) PTC 292 (IPAB). Lastly she submitted that the appeal may be allowed by setting aside the impugned order on application for review and the restore the opposition No. AMD-58570.
8. Shri Trivedi, learned counsel for the respondent No.1 submitted that the appeal is devoid of any merit as the appellant has tried to encompass all the possible issues in relation to the case and out of which many are irrelevant. The main issue is sustainability of the impugned order dated 5.5.2005 which dismissed the review applications and not the extension of time or decision on merits on the opposition or who is prior in the use of the mark or the non-consideration of alleged affidavit of the appellant. The leaned counsel relying upon the judgment of the Apex Court in Smt. Meera Bhanja v. Smt. Nirmala Kumari Choudhury, AIR 1995 Supreme Court 455 contended that the review have to be strictly confined to the scope and ambit of Order 47, Rule 1 of the Civil Procedure Code. He further contended that the application for review was barred by limitation as the same was required to filed within one month from the date of the decision i.e within 10.1.2004 in accordance with the provisions of rule 115 of the Trade Marks Rules, 2002 whereas such application was filed by the appellant after lapse of two months on 11.2.2004. The Assistant Registrar has passed the abandonment order under sub-section (2) of section 21 of the Act as she was under the obligation not to extend the period beyond one month owing to statutory bar under the Act to extend time not exceeding one month in aggregate. In support of this he relied on the decision of Delhi High Court in Sunrider Corporation v. Hindustan Lever Limited and Anr., 2007 (2) CTMR 191 (Delhi).
9. After having heard both side and going through the record, the main question for our decision is whether the impugned order dated 5.5.2005 passed by the Assistant Registrar deserves to be set aside on the averments made in the appeal or not. There is no specific procedure provided for review under the Act or the rules made thereunder. In the absence of any procedure so provided we have to fall back on the principles of review under the C.P.C. Order XLVII of the C.P.C. provides for the review of judgments. The scope of such review is very limited. Review of judgments may be allowed on the grounds of (i) discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or order was made; or (ii) some mistake or error apparent on the face of the record; or (iii) for any other sufficient reason (which has been interpreted to be analogous to the other reasons specified here before). In Smt. Meera Bhanja (supra), the Apex Court held at para 8 as under:-
â8. It is well settled that the review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47, Rule 1, C.P.C. In connection with the limitation of the powers of the Court under Order 47, Rule 1, while dealing with similar jurisdiction available to the High Court while seeking to review the orders under Article 226 of the Constitution of India, this Court, in the case of Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma, AIR 1979 SC 1047, speaking through Chinnappa Reddy, J., has made the following pertinent observations (para 3);
âIt is true there is nothing in Article 226 of the Constitution to preclude the High Court from exercising the power of review which inheres in every Court of Plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it. But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of Appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court,â
Now it is also to be kept in view that in the impugned judgment, the Division Bench of the High Court has clearly observed that they were entertaining the review petition only on the ground of error apparent on the face of the record and not on any other ground. So far as that aspect is concerned, it has to be kept in view that an error apparent on the face of the record must be such an error which must strike one on mere looking at the record and would not require any long drawn process of reasoning on points where there may conceivably the two opinions. We may usefully refer to the observations of this Court in the case of Satyanarayan Laxminarayan Hegde vs. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137, wherein, K.C. Das Gupta, J., speaking for the Court has made the following observations in connection with an error apparent on the face of the record:
âAn error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by a writ of certiorari according to the rule governing the powers of the superior Court to issue such a writ.â
In substance, the review Bench has reappreciated the entire evidence, sat almost as Court of appeal and has reversed the findings reached by the earlier Division Bench. Even if the earlier Division Bench findings regarding C.S. Plot No.74 were found to be erroneous, it would be no ground for reviewing the same, as that would be the function of an appellate Court. Learned counsel for the respondent was not in a position to point out how the reasoning adopted and conclusion reached by the Review Bench can be supported within the narrow and limited scope of Order 47, Rule 1, C.P.C. Right or wrong, the earlier Division Bench judgment had become final so far as the High Court was concerned. It would not have been reviewed by reconsidering the entire evidence with a view to finding out the alleged apparent error for justifying the invocation of review powers. Only on that short ground, therefore, this appeal is required to be allowed. The final decision dated 8th July, 1986 of the Division Bench dismissing the appeal from appellate decree No.569 of 1973 in so far as C.S. Plot No.74 is concerned as well as the review judgment dated 5th September, 1984 in connection with the very same plot, i.e. C.S. Plot No.74 are set aside and the earlier judgment of the High Court dated 3rd August, 1978 allowing the Second Appeal regarding suit plot No.74 is restored.
10. Similarly, in Wander Ltd. and Another v. Antox India (P) Ltd., 1991 (11) PTC 1 (SC), the Court at para 13 held as under:-
â13. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the Appellate Court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal or principle. Appellate Court will not reassess by the court below if the one reached by the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial courts exercise of discretion. After referring to those principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. vs. Pothan Joseph 1960 (3) SCR 713, said:
ââ¦â¦â¦..These principles are well established, but as has been observed by Viscount Simon in Charles Osention and Co. vs. Johnston the law as to the reversal by a court of appeal of an order made by a Judge below in the exercise of his discretion is well established, an any difficulty that arises is due only to the application of well settled principles in an individual case.
The appellate judgment does not seem to defer to this principle.
Since the appellant has indirectly raised the issue whether the Registrar has power to extend time for filing of evidence in support of opposition beyond the period of three months prescribed under sub-rule (1) of rule 50 of the Trade Marks Rules, 2002 in the application for review and the appeal, the learned counsel for the respondent No.1 submitted that the Registrar has no power to extend time exceeding one month in aggregate, as provided in the statute, by placing reliance on the recent judgment of High Court of Delhi in Sunrider Corporation (supra) wherein a similar issue, namely,-
(1) Whether the Registrar of Trade Marks has the power to extent the time for filing of the evidence affidavit in support of an opposition beyond the maximum period of three months prescribed under Rule 50(1) of the Trade Marks Rules, 2002 ?
(2) Whether the non-filing of the evidence affidavit within the prescribed time, ipso facto, means that an opposition to a trade mark application would be deemed to have been abandoned in terms of the provisions of Rule 50(2) of the Trade Marks Rules, 2002 ?
The above issue has been answered by the Court as under:-
â16. It is, therefore, quite clear that the answer to question no.1 is that the Registrar does not have the power to extent the time for filing of the evidence affidavit in support of an opposition beyond the maximum period of three months prescribed under Rule 50(1) of the Trade Marks Rules, 2002 and that the answer to question no.2 is that the non-filing of the evidence affidavit within the prescribed time would by itself lead to the conclusion that the opposition has been abandoned.
17. Lastly, I would like to observe that the Intellectual Property Appellate Board in arriving at the conclusion that it did was under the impression that the Registrar had discretion in the matter and was exercising a discretionary power. This premise is not correct. The provisions of Rule 50(2) are mandatory and the Registrar has not discretion. If the evidence affidavit has not been filed within the time prescribed, the opposition would have to be deemed to have been abandoned. The Registrar has also no discretion in extending the time beyond the maximum period of one month prescribed under Rule 50(1).â
11. In the present appeal, the main ground of appeal that the Assistant Registrar should have decided the opposition on merit even on pain reading of notice of opposition and counter-statement and not on mere technicalities of sections of the law is not sustainable. The opposition cannot be decided on merit on the basis of mere statement contained in the notice of opposition. The statement made or objections raised in the notice of opposition have to be weighted and corroborated with the evidence that the opponent adduce in support of the opposition. Admittedly, the affidavit in support of opposition has been filed by the appellant after passing the deemed abandonment order by the Assistant Registrar. The Registrar has not passed any order granting extension of time. For granting extension of time, the provisions of section 131 of the Act provide that the Registrar must be satisfied that there is sufficient cause for extending the time to do an act. It is evident from the copy of Form TM-56 dated 24.7.2003 that the ground mentioned for extension was âAwaiting evidences from clientâ which cannot be termed to be sufficient cause for extension of time. The Assistant Registrar has passed order under sub-section (2) of section 21 read with sub-rule (2) of rule 50 of the Trade Marks Rules, 2002 treating the opposition as deemed to have been abandoned before the filing of affidavit by the appellant. In such circumstances the question of deciding the opposition on merit having the affidavit taken into consideration does not arise. Since the deemed abandonment of opposition was by operation of law and no reason for passing such order was required to be recorded, therefore, review of such order cannot lie. Moreover, the review petition does not contain any of the grounds on which review can be allowed. It is not the case of appellant that there is discovery of new and important matter of evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by it at the time when the order was made or some mistake or error apparent on the face of the record has occurred. We are of the opinion that the Assistant Registrar has rightly dismissed the review petitions. We are also of the view that it is not necessary for us to go into the other grounds of appeal as they are not the subject matter of the order against which the present appeal has been preferred.
12. In view of the above, the appeal fails and accordingly, we dismiss the appeal. However, there is no order as to costs.