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2024 DIGILAW 1721 (MAD)

Shiva Tobacco Company v. Md. Zaheeruddin

2024-07-26

P.B.BALAJI

body2024
ORDER : 1. At the outset, it is seen that (T) OP (TM) No.425 of 2023 has already been disposed of and only as against the order passed in the said proceedings, (T) Rev. Pet (IPD) No.1 of 2024 has been filed. Hence, nothing survives for consideration in (T) OP (TM) No.425 of 2023. 2. Taking up the review petition, I have heard Mrs.Gladys Daniel, learned counsel for the petitioner and Mr.M.S.Bharath for M/s.K.G.Bansal & Co.,, learned counsel for the 1 st respondent and Mr.R.Rajesh Vivekananthan, learned counsel for the 2 nd respondent. 3. Mrs.Gladys Daniel, learned counsel for the petitioner would submit that the father of the applicant had adopted the mark even in 1962 and unfortunately, the Intellectual Property Appellate Board has not taken note of the same. The learned counsel for the review petitioner would invite my attention to the relevant documents filed along with the typed set of papers and also fortify her contentions by placing reliance on the decision of the Hon'ble Supreme Court in Vasir Sultan's case. 4. According to the learned counsel for the review petitioner, the petitioner, after his father's death, had applied for registration and he was also accorded with registration in No.1330146, which however was opposed in No.1495476. According to the learned counsel for the review petitioner, the registration itself was a recognition of the right of the petitioner and she would invite my attention to Ex.3, license, where it is clearly mentioned that the license was issued on 03.01.1972. Therefore, according to her, the IPAB ought to have taken note of the said fact and even if the petitioner had not been able to establish adoption in 1962, atleast from 1972 onwards there was documentary evidence to support the claim of the petitioner. She would therefore submit that there is an error apparent on the face of record and prayed for the review petition being allowed. 5. Per contra, Mr.M.S.Bharath, learned counsel for the 1 st respondent would submit that the petitioner can claim registration only from 1973 onwards, even though the claim has been made that the mark was adopted even in 1962. He would further submit that the order of the IPAB came to be passed on 21.03.2014 and the review petition was filed on 16.05.2014 to which, the contesting respondent also filed a counter affidavit on 25.05.2015. He would further submit that the order of the IPAB came to be passed on 21.03.2014 and the review petition was filed on 16.05.2014 to which, the contesting respondent also filed a counter affidavit on 25.05.2015. He would also submit that none of the grounds set out under Order 47 of the Code of Civil Procedure have been made out and there is no error on the face of the record, namely the order passed by the IPAB. 6. The learned counsel for the 1 st respondent would further submit that the scope of review is limited and no grounds have been substantiated or made out by the review petitioner and he would also place reliance on the findings of the IPAB and submit that specific findings have been rendered by the Board and if at all the review petitioner was aggrieved, an appeal ought to have been preferred and not a review petition, especially when the petitioner/review petitioner seeks 14 years of pre-dated benefit. Insofar as the reliance placed on Ex.3, which is the license dated 03.01.1972, the learned counsel for the 1 st respondent would submit that even in the grounds of review, this plea has not been taken and therefore, the review petitioner cannot press this into service. He would therefore pray for dismissal of the review petition. 7. I have considered the rival submissions advanced by the learned counsel on either side. 8. The review petition has been filed primarily on the grounds that the judgment of the Hon'ble Supreme Court in Vishnudas Trading As Vishnudas Vs. The Vasir Sultan Tobacco Ltd. , 1996 (16) PTC 512 has been overlooked and the petitioner's father, being the sole proprietor of the business, after his death, the business came to be continued by the petitioner as legal representative and therefore, the IPAB erred in holding that the petitioner did not establish as to how he claimed entitlement of the mark. 9. It is the case of the 1 st respondent that the review is not maintainable on the above mentioned grounds. 10. Order 47 of Code of Civil Procedure reads as follows: “ORDER XLVII REVIEW 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. 10. Order 47 of Code of Civil Procedure reads as follows: “ORDER XLVII REVIEW 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. (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 face 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. (2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applied for the review. Explanation.—The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment. 2. [To whom applications for review may be made] — Rep. by the Code of Civil Procedure (Amendment) Act, 1956 (66 of 1956) 3. Form of applications for review .—The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review. 4. Application where rejected .— (1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. Form of applications for review .—The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to applications for review. 4. Application where rejected .— (1) Where it appears to the Court that there is not sufficient ground for a review, it shall reject the application. (2) Application where granted.—Where the Court is of opinion that the application for review should be granted, it shall grant the same: Provided that— (a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree or order, a review of which is applied for; (b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation. 5. Application for review in Court consisting of two or more Judges .—Where the Judge or Judges, or any one of the Judges, who passed the decree or made the order a review of which is applied for, continues or continued attached to the Court at the time when the application for a review is presented, and is not or not precluded by absence or other cause for a period of six months next after the application from considering the decree or order to which the application refers, such Judge or Judges or any of them shall hear the application, and no other Judge or Judges of the Court shall hear the same. 6. Application where rejected .— (1) Where the application for a review is heard by more than one Judge and the Court is equally divided, the application shall be rejected. (2) Where there is a majority, the decision shall be according to the opinion of the majority. 7. Order of rejection not appealable. Objections to order granting application: (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. Order of rejection not appealable. Objections to order granting application: (1) An order of the Court rejecting the application shall not be appealable; but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. (2) Where the application has been rejected in consequence of the failure of the applicant to appear, he may apply for an order to have the rejected application restored to the file, and, where it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from appearing which such application was called on for hearing, the Court shall order it to be restored to the file upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for hearing the same. (3) No order shall be made under sub-rule (2) unless notice of the application has been served on the opposite party. 8. Registry of application granted, and order for re- hearings .—When an application for review is granted, a note thereof shall be made in the register and the Court may at once re-hear the case or make such order in regard to the re-hearing as it thinks fit. 9. Bar of certain application .—No application to review an order made on an application for a review or a decree or order passed or made on a review shall be entertained.” 11. The argument of the learned counsel for the review petitioner is that there is an error apparent on the face of record and in this regard, she would invite my attention to the specific portions of the order. However, I find that these are all factual findings arrived at by the IPAB and if at all the review petitioner was aggrieved, the remedy open to the review petitioner was to have preferred an appeal. However, without doing so, the review petition has been filed and in the absence of any error apparent on the face of record or any other sufficient reason, I am unable to countenance the arguments of the learned counsel for the review petitioner. 12. However, without doing so, the review petition has been filed and in the absence of any error apparent on the face of record or any other sufficient reason, I am unable to countenance the arguments of the learned counsel for the review petitioner. 12. It is one thing to say that the order of review is available in matters of this nature and totally another thing to say that a review can be entertained only when the grounds set out under Order 47 of CPC are made out by the learned counsel for the review petitioner. Here, admittedly, the IPAB has considered the contentions put forth on either side and finding that the petitioner has claimed use of trademarks from 1962 onwards, through predecessors, in the application for registration made on 05.01.2005. The IPAB has arrived at a finding that no material has been brought on record to prove the user since 1962. The Board has also found that the review petitioner has not proved his proprietorship to the trademark by explaining as to how he acquired title from his predecessors. The only error committed by the Board appears to be the finding that the Central Exercise issued a license dated 23.11.1976 in the name of Azeemuddin, the father of the review petitioner, since the license which is filed in Form-3 bears a date 03.01.1972 and not 23.11.1976. However, I am of the considered opinion that the said order does not in any way alter the final decision made by the IPAB since the consequent finding rendered by the Board is that only after the death of the father Mr.Azeemuddin, the review petitioner has started using the mark from 1994 onwards. The IPAB has also found that there is no consistent stand taken by the review petitioner, as in some of the documents it is claimed as if it is a partnership firm whereas in other documents, it is claimed as a sole proprietor concern. Finding that there is a wrong user alone, the mark has been cancelled. 13. Admittedly, the petitioner's case before the Registrar as well as the IPAB was that there is user from 1962 onwards, for which absolutely no documents have been filed. Merely because the review petitioner is able to show a different date be it 1972 or 1976, it does not lend support to claim user set out from 1962 onwards. 13. Admittedly, the petitioner's case before the Registrar as well as the IPAB was that there is user from 1962 onwards, for which absolutely no documents have been filed. Merely because the review petitioner is able to show a different date be it 1972 or 1976, it does not lend support to claim user set out from 1962 onwards. In view of the forgoing discussions, no case is made out for a review. 14. In fine, the review petition dismissed. There shall be no order as to costs.