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Friday, 2 March 2012

REVIEW POWER of Intellectual Property Appellate Board

Intellectual Property Appellate Board (Procedure) Rules, 2003
Rule 23: Review petitions.- (1) A petition in triplicate for review of an order of the Appellate Board may be made to the Registry in the prescribed Form 6 under these rules within two months from the date on which the order is communicated accompanied by a statement setting forth the grounds on which the review is sought. Where the order in question concerns more than one respondent, sufficient extra copies of such petition and statement shall be filed.
(2) The Registry shall forward the petition and statement to the respondents to the review petition.
(3) The respondents may file counter statement in Form 1 under these rules within two months from the date of receipt of the review petition and shall forward a copy of the counter statement to the petitioner directly under intimation to the Registry.
(4) The review petition shall be posted for hearing before a Bench by the Chairman.

In Grindlays Bank v. Central Government
the Court was required to consider, inter alia whether the Labour Tribunal had any jurisdiction to set aside the ex-parte award particularly when it was based on evidence. The objection as to the jurisdiction of the Tribunal, raised before the Court was in the following terms:
It is contended that neither the Act nor the Rules framed there under confer any powers upon the Tribunal to set aside an ex parte award. It is urged that the award although ex parte, was an adjudication on merits as it was based on evidence led by the appellant, and, therefore, the application made by respondent No. 3 was in reality an application for review and not a mere application for setting aside an ex parte award.
The Supreme Court held as follows:
It is true that there is no express provision in the Act or the rules framed thereunder giving the Tribunal jurisdiction to do so. But it is a well known rule of statutory construction that a Tribunal or body should be considered to be endowed with such ancilliary or incidental powers as are necessary to discharge its functions effectively for the purpose of doing justice between the parties. In a case of this nature, we are of the view that the Tribunal should be considered as invested with such incidental or ancillary powers unless there is any indication in the statute to the contrary. We do not find any such statutory prohibition.
The expression, 'review', it was held by the Supreme Court, in the above case is used in two distinct senses, namely "(1) a procedural review which is either inherent or implied in a Court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record".

Patel Narshi Thakershi v. Pradyuman singh ji
It was further held, that it is in the latter sense that the Supreme Court in Patel Narshi Thakershi v. Pradyumansinghji held that no review lies on merits unless a statute specifically provides for it. It was also held that when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such powers inheres in every Court or Tribunal.

Godrej Sara Lee Ltd., A Company ... vs Reckitt Benckiser (India) Ltd. on 15 February, 2008
Shri A.K. Gupta learned senior counsel, however, drew our attention to Rule 23 of the Intellectual Property Appellate Board (Procedure) Rules, 2003 which lays down that a petition in triplicate may be made to the Registry in the prescribed Form-6 under these Rules within two months from the date on which the order is communicated, accompanied by a statement setting forth the grounds on which the review is sought. That Rule itself does not confer power on this Board to review its own orders or decisions. The rule merely prescribes the form in which an application for review may be made. The rule may be contrasted with Section 127(c) of the Act. That provision deals with powers of registrar and based upon that the Registrar may on an application made in the prescribed manner 'review its own decision'. There is no such corresponding provision either under the Act or the Rules framed thereunder conferring power on the IPAB to review its orders or decisions.
We are, therefore, of the view that this Board has no jurisdiction or power to review its own orders and decisions except due to procedural defect or inadvertent error which may require correction ex debito justitiae. The instant petition filed for review on merits, in our opinion is, therefore, not maintainable. It is accordingly dismissed without going into the merits of the contentions raised.

Union of Bank of India v. Chanderkant Gordhandas Shah (1994) 6 SCC 271,
 it is submitted that the High Court exercising jurisdiction under Article 226 of the Constitution will not re-examine factual disputes or the evidence and sit in appeal over the concurrent findings of the AR or the IPAB. The scope of the powers of the judicial review were limited to correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice.
On a conspectus of case law, it becomes quite evident that a Court or Tribunal cannot review its own order or Judgment unless there is a statutory provision providing for the same. However, a Court or Tribunal has inherent powers to recall orders obtained by practising fraud on it. There is no question of the Court becoming functus officio, because it retains the jurisdiction to recall such orders. It inheres in a Court or Tribunal to review by recalling the orders on grounds of fraud, misrepresentation or other similar grounds. We may, however, make it clear that the decision of the Division Bench in K.B.G. Tilak v. Spl. Tahsildar (1978) 2 APLJ (HC) 83) is confined to a case of reopening in a case where either it was dismissed for default or a decision was rendered exparte. This decision, as it is peculiarly confined to the facts and circumstances thereof, cannot, therefore, be of any assistance in so far as the case on hand is concerned. We, therefore, reiterate that a Court or Tribunal can review its own order or judgement only where the party, by way of mis-representation, has played fraud upon the Court and not in other cases.”

IN P.P. Buildwell Pvt. Ltd. Vs. P.P.Jewellers Private Ltd.,

Following the decisions of the Supreme Court in Grindlays Bank’s case and the Division Bench of the Andhra Pradesh case we are of the view that if there is nothing provided in the statute the court or the Tribunal will have no powers to deal with the matter. In the interest of justice, it could be done if there is an error due to a procedural defect that definitely could be rectified. In view of the above, we do not find any procedural defect in the instant case to review the same.

Champagne Moet & Chandon vs Union Of India & Ors on 19 September, 2011

It is worth noting, while exercising the power of judicial review under Article 226 of the Constitution of India it cannot be converted into an appeal. The judicial review is directed not against the decision but is confined to the examination of the decision making process. If the reasons ascribed by the authorities or the IPAB are manifestly unreasonable that no reasonable authority entrusted with the power in question would reasonably made such a decision, the concept of judicial review gets attracted.

Bunge Agribusiness India (P) Ltd. vs Registrar Of Trade Marks And Anr. on 3 December, 2004
The main contention of the learned Counsel for the appellant is that the Deputy Registrar by his earlier order allowed the opposition filed by the appellant by upholding all the objections raised by the appellant under Sections 9, 11(a), 12(1) and 18(1) of the said Act. The Review Petition has been filed only on the ground that the original documents were not filed at the time of hearing of the application and second respondent having got the possession of the original documents wants to produce the same by way of additional evidence and on the basis of those documents, the matter can be reviewed. The impugned order of the Deputy Registrar does not disclose the particulars of any original document of the second respondent. The earlier order has been reviewed only on the basis that the mark is a common dictionary word and as such, the appellant cannot claim monopolistic rights. Further, the Deputy Registrar has found that the goods of the second respondent have nothing to do with the goods of the appellant as both are different and consequently the Deputy Registrar had observed that there is no need for any detailed discussion and allowed the Review Petition. The impugned order is contrary to law as the grounds made out in the Review Petition were not the issues discussed by Deputy Registrar in his impugned order. Further, it was contented that the review can be done only to correct the mistake and not otherwise.
6. We find some force in the contention of the learned Counsel for the appellant. As stated already, by order dated 26.2.1993, the Deputy Registrar upheld the opposition of the appellant finding that the second respondent's trademark offends Sections 12(1), 9, 11(a) as well as 18(1) of the said Act. In the Review Petition, the Deputy Registrar was persuaded to review the earlier order only on the ground that the second respondent could not produce the material evidence, which is very clear from the following passage of the order of the Deputy Registrar in his order dated 19.10.1993:
The discovery of evidence by the applicants is an important law point. This evident was not present in the Trade Marks Registry when order dated 26.2.1993 was passed by the Ld. Deputy Registrar of Trade Marks. Now, by exercise of due diligence the evidence in original has been made available to the Trade Marks Registry. Had this evidence been filed prior to order dated 26.2.1993 the fate of this case could have been altered. The grounds of the review petition are reasonable, convincing and relevant. Hence, it is a fit case to allow the said Review Petition.

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