Xerox Corporation vs B.V. Elango Himachalapathy And Ors

K.N. Basha, J

The petitioner has preferred the review petition in respect of the order of this Bench Order No. 229 of 2012 dated 21.09.2012 only in respect of ORA/201/2009/TM/KOL under trade mark registration No. 217826 in Class 16 in which the IPAB Bench is allowed the rectification petition against the review petition herein.

The IPAB Bench passed the above said common order in respect of seven original applications filed for rectification, the Bench dismissed the rectification petitions in ORA/199/2009, ORA/200/2009, ORA/204/2009 and ORA/291/2009. However, the other three original application Nos. ORA/202/2009, ORA/201/2009 and ORA/203/2009 are allowed. The review petitioner, the respondent in the ORA's has chosen to prefer the present review petition only in respect of ORA/201/2009 arising out of the registered trade mark in class 16 bearing No. 217826 relating to paper, paper articles and cardboard articles.

3 . Mr. Ajay Gupta, the learned senior counsel and Ms. Shwetasree Majumdar, the learned counsel appeared for the review petition. Both the learned counsel submitted their arguments by taking us through findings rendered by the IPAB Bench in the impugned order and as well as to the factual statements made by the parties. The main contention of the learned senior counsel for the review petition is the findings rendered in the impugned order in respect of user and non user are factual findings in their favour but final decision is wrong. It is contended that in respect of use the review petitioner has proved their use from the year 1965 though they are using from the year 1961. It is the contention of the learned counsel for the review petitioner that at the time of hearing the arguments they were able to produce evidence regarding their usage from the internet in respect of other trade marks in other class excluding the class 16 in respect of their usage from 1960 onwards.

4 . The learned senior counsel would further contend that the main contention of the respondent/applicant is only in respect of the word Xerox used as a common word and in the minds of the general public as observed in the impugned order and there is no question raised in respect of the usage as per provision under Section 47 of the Trade Marks Act. The learned senior counsel therefore would submit that the impugned order passed on the ground of user would certainly amount to an error apparent on the face of the record.

5 . It is pointed out by the learned senior counsel that in so far as the user is concerned they are now producing the fresh evidence which could not be produced earlier due to time constrain and in spite of due diligence.

6 . Mr. P. Elango Himachalapathy, the respondent herein is appearing as a party in person. It is submitted by him that there is no error or infirmity in the impugned order warranting interference of this bench in this review petition. It is contended that there is no error apparent on the face of the record in passing the impugned order. Therefore, it is submitted that the review petition is liable to be dismissed.

7 . We have given our careful and anxious consideration to the rival contentions put forward by either side and also perused the impugned order of the IPAB Bench dated 21.09.2012 and the review petition.

8 . At the outset, it is to be stated that in the review petition, it is specifically stated that the petitioner was using the trade mark Xerox in relation to goods in class 16 in India dates back to the earlier 1960's and if the evidence have been before the IPAB bench at the time of hearing and adjudication of ORA/201/2009, the said rectification petition would not have been allowed. It is further stated in the review petition that the said evidence have not been produced at the time of passing the impugned order on various reasons mentioned in the review petition. It is also stated that the non use of the trade mark Xerox by the petitioner in the year 1960's in India came only at the stage of final arguments and as such despite the best efforts the petitioner was unable to produce documents to substantiate the claim in that aspect. It is also stated in the petition no prejudice would be caused to the respondent in the event of allowing the review petition.

9 . Apart from the statements made in the review petition as stated above, Mr. Ajay Gupta, the learned senior counsel argued at length and as well as Ms. Swethasree Majumdar made certain clarifications and put forward certain other contentions in full force. It is contended by the learned senior counsel that the question of user was not at all the main contention of the applicant in the ORAs and the same was suddenly raised at the time of final arguments and inspite of the due diligence, the petitioner was not in a position to produce evidence for their user right from the year 1960 though they have produced documents to show that they were using from 1983 to till date.

We are of the considered view that nothing prevented the petitioner herein to seek their relief of filing petition to produce additional document even at the time of final arguments but such step was not taken by the petitioner. It is pertinent to note from the impugned order that it is observed by this bench both sides produced the additional documents. The non production of evidence at the time of final hearing is not a ground for review as the same would not amount to an error apparent on the face of the record as the impugned order was passed on the basis of contention put forward by either side and on the basis of materials and evidence available on record.

We are unable to countenance the contention that the impugned order was passed rendering decision contrary to the findings rendered by the bench for the simple reason that the perusal of the impugned order discloses that the respective contention have been considered elaborately and final conclusion have been summed up in the impugned order. We are unable to find any ground much less making out a ground of error apparent on the face of the record warranting our interference in the impugned order. It is well settled by a catena decisions of the Hon'ble Apex Court that the review petition is liable to be allowed only in the event of making out a case of error apparent on the face of the record.

In view of the aforesaid reasons, the review petition is hereby dismissed. No order as to costs.