Kailash Gambhir, J.

C.M. Appl. No.2992/2012

1. By this application filed under Section 5 of Limitation Act, the applicant seeks condonation of delay of 32 days in filing the accompanying review application. For the reasons stated in the application, the same is allowed and the delay of 32 days in filing the review application is condoned.

2. The application stands disposed of.

Rev. Pet. No. 109/2012

"1. By this application moved under Order 47 Rule 1 read with Section 151 of Code of Civil Procedure, 1908 (hereinafter referred to as CPC) the appellant/applicant seeks review of the order dated 7th December 2012, whereby this court had dismissed the appeal filed by the appellant challenging the dismissal of its stay application by the learned trial court in a suit for permanent injunction.

2. Addressing arguments in support of the review application, Mr. S.K.G. Bansal, counsel for the appellant strongly contended that there is an error apparent on the face of record in the order dated 7th December 2012 passed by this court due to the following reasons:-

i) In paragraph 3 of the order, this court did not record the submission made by counsel for the appellant correctly thereby referring to the usage of the artistic packaging of the appellant’s product in a particular colour combination from the year 2005 whereas the counsel submitted the year 2000 instead of 2005.

ii) Likewise the court had erred in recording the submission that the respondent brought out a deceptively similar packaging material with almost identical colour combination much later in the year 2009, however the year mentioned by the counsel for the appellant was 2004;

iii) In para 5 of the order, this court had erred in considering the observation made by the learned trial court with regard to placing on record various bills/ invoices by the appellant from the year 2005 onwards while the bills placed on record were from the year 2000 onwards.

iv) This court had missed the critical piece of documentary evidence placed on record, the photocopy of Registration Certificate issued by the Office of the Registrar of Copyright granting registration of the artistic work in depicting certain special features, get up and trade dress of their product being sold under the trademark ‘AARTI’ in favour of the appellant vide registration No. A-70764/2005 dated 28.4.2005 which became effective from the date of its application dated 6th December, 2003.

v) The court had further ignored the fact admitted by the defendant of adopting the mark ‘Diya’ alongwith its label since the year 2004 in para 11 of preliminary objections to the written statement."

3. The aforesaid indisputable facts which were placed on record, as per the counsel for the appellant, were inadvertently glossed over by this court as can be seen from the order dated 7th December 2012 and therefore, the mistake and error is writ large on the very face of it, on the part of this court in not appreciating the facts in its right perspective.

4. Counsel further submitted that grievance of the appellant was not with regard to the infringement of the trademark ‘Aarti’ or having any problem with the trademark ‘Diya’ of the respondent nor even with the colour of the label/packaging material brought up by the respondent. The prime concern of the appellant both before the learned trial court and this court was with regard to unabashed violation on the part of the respondent towards the registered copyright of the appellant in the said artistic work of their label ‘Aarti’, it’s essential features, get up and trade dress / packaging material.

5. Counsel further argued that had this court taken into consideration the aforesaid facts, it would have certainly exercised its discretion in favour of the appellant by the grant of ad-interim injunction and it is only because of non consideration of the aforesaid facts, the appeal filed by the appellant was dismissed.

6. In support of his arguments, counsel for the appellant