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2008 (12) TMI 804

..... SC for Gladys Daniel For the Respondent : T.V. Ramanujam, SC for V. Veeraraghavan, Adv. assisted by P.V. Rajeswari, Adv. for 1st Respondent ORDER D. Murugesan, J. 1. The Civil Revision Petitions are filed invoking Article 227 of the Constitution of India by M/s. World Wide Brand Inc, against the order dated 15.03.2006 passed by the Intellectual Property Appellate Board dismissing O.A. Nos. 15-20/2005/TM/CH. 2. The facts that give rise to all the revision petitions are as follows: Smt.Dayavanti Jhamnadas Hinduja, Smt. Janaki Madanlal Hinduja, Smt.Veena Rajendra Hinduja and Smt. Nalini Dinesh Hinduja, partners of a registered partnership firm, trading as M/s. Central Warehouse at Bangalore had filed the following applications under Class-25 Sl. No. Application No. Description of the Mark 1. 597843 Camel Collection with for registration 2. 597845 Camel Trophy Adventure Wear 3. 597842 Camel Collection with the device (square) 4. 597840 Camel Collection with the device strip 5. 597837 Camel Collection with Device (neck label) 6. 597848 Camel for registration of Trade Mark "Camel Collection" in respect of "all types of readymade garments, including foot wear and head gear& .....

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..... oner' company, had adopted the said trade mark. The respondents cannot, therefore claim to be the proprietors of the trade mark within the meaning of Section 18(1) of the Trade Marks and Merchandise Act, 1958. (G). Hence, the Registration of the Trade Mark "Camel Collection" in favour of the respondents would be contrary to the Sections 9, 11(a) and 11(e) and 18(1) of the Trade Marks and Merchandise Act, 1958. 3. The respondents filed their counter statements disputing the claim of the petitioner by contending that the respondents have adopted the trade mark "Camel Collection" along with device of camel and are using since the year 1992 with openly and continuously without any encounter several years. The claim of the petitioner that they had earned reputation and goodwill was denied. By virtue of long and continuous extensive use since the year 1992, the respondents' trade mark is being adopted to distinguish their goods and it is distinctive of their goods only and with none else. Hence, the respondents contended that the applications were well within the provisions of The Trade Marks and Merchandise Act, 1958. 4. The petitioner filed evidence in suppo .....

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..... ent that the camel brand cigarettes are available in duty free shops, there is no evidence to establish that the said trade mark is so well known in India or the same attained the transborder reputation. The appellate Board had also found that the petitioner failed to produce any evidence in regard to the camel publicity either in magazines or otherwise of the trade mark in India. Finally, the appellate Board found that the petitioner have failed to discharge their initial burden of proving the reputation. 7. As far as the opposition as to the registration of the trade mark is contrary to Section 11(1)(a) of the Trade Marks Act, 1999 which came into force when the applications for registration were taken up for consideration is concerned, after analysing the documents produced by the petitioner with regard to an agreement entered into by the petitioner with Dornbusch & Co, permitting the licensee to manufacture shirts, sweat/T-Shirts, knitwear, etc., the appellate Board found that in as much as the territory for the licensee is mentioned as Benelux, Switzerland, Denmark, and Israel and the licence agreement was in respect of use of trade mark set forth in Schedule-A of the lice .....

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..... ibed Authority and Ors. AIR1978SC29 , it has been held that the High Court cannot re-appreciate the evidence and come to its own conclusion different from that of the prescribed Authority. 15. In Ganpat Ladha v. Sashikant Vishnu Shinde, the Apex Court has held that the High Courts cannot justify the exercise of its discretionary powers under Article 227 of the Constitution as to the finding of fact; unless such finding of fact is clearly perverse and patently unreasonable. 16. In Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, the Apex Court at page 460, para (4) has held thus:- It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 277 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of t .....

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..... exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeking that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate court and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 c .....

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..... and used the trade mark "Camel Collection", "Camel Collection and device of camel", "Camel Trophy" etc., and the petitioner claim to have owned around 1395 trade marks registration world over and their use is prior in time to that of the respondent. 23. As far as the ownership of the trade mark is concerned, the appellate Board had found that there is no dispute that the revision petitioner had registered its trade mark "Camel" brand in various forms either as a word mark or with device mark in various countries. How far the said finding could be made use of by the petitioner to succeed in these revisions is a matter for further consideration. 24. Insofar as the claim on the ownership of the trade marks is concerned, the petitioner have filed Exs.A to J before the Registering Authority and the appellate Board. As we have held, that even when this Court does not act as an appellate authority, while exercising the power under Article 227 of the Constitution of India and also taking note of the fact that the scope of such revisional power is very limited, in exercise of such power this Court would not be entitled to either re-appreciate or cons .....

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..... ts in the trade mark 'camel'. Though different pleas are taken as to the ownership of the trade mark 'camel', still the petitioner have not adduced any evidence to show as to how they derived the ownership of the trade mark "camel collection" etc., from RJR. 26. The appellate Board having found that the revision petitioner had registered the camel brand in various forms either as a word mark or as a device mark in various countries did not agree with the petitioner and consequently rejected all the objections. As it is much argued that the appellate Board had not considered the evidence placed on record in respect of (1) dishonest adoption of the trade mark "camel collection and camel device" by the respondent and (2) transborder reputation and consequently passing off, we are inclined to refer to the order of the appellate Board as to the discussions on the above aspects. We once again make it clear that unless the findings of the appellate Board are totally perverse and without any material evidence or certain findings which are given contrary to the admitted facts, the High Court cannot interfere with that order. 27. As far as the dishonest ad .....

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..... he delay, lapses and acquiescence on the part of the petitioner, as such written statements were filed in the year 2003 when the petitioner had already opposed the registration of the trade mark. The circumstances under which such statements were made, is a matter to be adjudicated at the time of trial and cannot be acted upon even before such adjudication. We may in this context, usefully refer to the judgement of the Apex Court in Prem Ex-Serviceman Co-Op. Tenant Farming Society Ltd. v. State of Haryana and Ors. AIR1974SC1121 wherein the Apex Court while considering such an admission in the pleadings had observed thus: It may be that the members of the Co-operative Societies had made some admissions the nature and effect of which require examination. It is well settled that the effect of an alleged admission depends upon the circumstances in which it was made. We are unable to go into these questions until they have been fully and properly investigated by an authority empowered to consider them. 30. In the wake of the findings of the appellate Board and for our own reasons, we are not in agreement with the submission of the petitioner in regard to dishonest adoption. 31. As regar .....

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..... dvertisement, it is seen that the petitioner had produced two calendars which are in Spanish Language and were not in circulation in India and the same cannot be relied upon for the purpose of advertisements of camel brand cigarettes in India. We find no infirmity in the finding of the appellate Board in rejecting the opposition relating to the transborder reputation, as those findings are only on consideration of the documents relied upon by the petitioner. 33. As the findings rendered by both the Registrar of Trade Marks as well the appellate Board are on appreciation of documents produced, in our considered view those findings require no interference in view of the limited scope to exercise the power under Article 227 of the Constitution. 34. In view of the above, the documents which were produced by the petitioner in this Court for the very first time cannot be looked into at all, as the consideration of fresh materials by this Court would not be appropriate while exercising the power under Article 227 of the Constitution. Further we do not find any reason for grant of injunction in favour of the petitioner on the ground of passing off also. In view of our above findings, which .....

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