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TMI Blog2008 (12) TMI 804X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 before the Assistant Registrar of Trade Marks, Chennai and the applications were ordered to be advertised in the Trade Mark Journal 1206 (s) dated 08.09.1999. The applicants for convenience sake will be hereinafter referred to as 'the respondents'. M/s. World Wide Brand Inc, (h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrary 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 support of the opposition by way of an affidavit. The respondents also filed evidence in support of their applications by way of an affidavit. The Assistant Registrar of Trade Marks on consideration of the rival claims including the evidence had disallowed the opposition and ordered to proceed for the registration of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 licensed articles and in connection with the manufacture, advertisement, permission, sale and distribution thereof in the territory described therein. Hence, the said licence agreement said to have been entered into by the petitioner with Dornbusch Co will not establish the manufacture of garment with trade m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 the inferior tribunal except where the findings are perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction. In our opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 could not be exercised as the cloak of an appeal in disguise . 19. In Surya Dev Rai v. Ram Chander Rai AIR2003SC3044 , the Apex Court has held that exercise of power under Article 226 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 consider any material placed before this Court when those materials were not placed and were not subjected to scrutiny by way of appreciation either before the registering authority or before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erived 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 adoption is concerned, the respondents had conceived and adopted the trade mark Camel Collection along with device of Camel, and Camel Trophy during the year 1992 and has been doing extensive and conti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces 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 regards the submission relating to the transborder reputation is concerned, the petitioner had contended that the camel brand cigarettes were available in duty free shops and they have pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose 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 are basically on merits, the challenge to the registration of the trade marks camel collection in favour of the respondent to be contrary to Sections 9, 11(a), 11(e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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