2008 Supreme(Mad) 4572

High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE D. MURUGESAN & THE HONOURABLE MR. JUSTICE V. PERIYA KARUPPIAH
M/s. World Wide Brands Inc. 1209, Orange Street Wilmington, Delaware, USA
Versus
Smt. Dayavanti Jhamnadas Hinduja & Another
Civil Revision Petition Nos.1047 to 1052 of 2006 and M.P.Nos.1 of 2006 (6 MPs) & M.P.Nos.2 and 3 of 2006
Decided on: 10-12-2008

Ratios:
a. Transborder protection can be availed for any trade mark only when the trade mark is used in an active business activity in India.
b. High Court would not interfere in its revisional jurisdiction under Art.227 when there is no perverse finding or violation of principles of natural justice.
c. Purpose of Art.227 is to keep the Courts/Tribunals within their bounds.
d. When two views are possible, the High Court would not interfere with the view taken by subordinate Courts/Tribunals in exercise of its power under Art.227.

Headnote:(A) Trade and Merchandise Marks Act, 1958 (43 of 1958)- Sections 9, 11(a) and 11(e) and 18(1)-Application for registration of trade mark-Assistant Registrar accepted application and ordered publication- Petitioner claimed transborder reputation and objected the order of Assistant Register-Tribunal dismissed the appeal-Revision in High Court-High Court did not find any perversity in the finding-Claim of transborder reputation not accepted-Revision dismissed.

       (B) Constitution of India, 1950-Art.227-Scope of power-Power is meant to keep all Courts and Tribunals within their bound- It is not an appellate power-Exercise of power is limited to want of jurisdiction, errors of law, perverse findings, gross violation of principles of natural justice and like the one- Where the statutory appellate tribunal/board brushes aside the evidence on conjunctures and without giving cogent reasons, which would result in error apparent on the face of the records power can be exercised.

       The Superintendence power of the High Court under Article 227 of the Constitution of India, over all Courts and tribunals is basically to keep the subordinate courts/tribunals/appellate authorities constituted under statutes within their bounds and not for correcting mere errors. The exercise of power is limited to want of jurisdiction, errors of law, perverse findings, gross violation of principles of natural justice and like the one. It may be exercised, if it is shown that grave injustice has been done to the person, who has invoked the jurisdiction with such grievance, the Court does not act as an appellate authority to reappraise the evidence and come to a different conclusion. Even if two views are possible, in exercise of power, the Court would not be justified in substituting its own reason for the reasons of the subordinate courts/tribunals or appellate tribunals/boards. Of course, the power of this Court is not taken away, where the statutory appellate tribunal/board brushes aside the evidence on conjunctures and without giving cogent reasons, which would result in error apparent on the face of the records. Para 22

       (C) Constitution of India, 1950-Art.227-Scope of power-Reconsideration of factual aspects-When to be done.

       The High Court under Art.227 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 the appellate board as the case may be. Hence, reconsideration of the evidence would necessarily be restricted. Para 25

       (D) Constitution of India, 1950-Art.227-Scope of power-Possibility of two views-High Court would not interfere.

       Even if two views are possible while appreciating the documents, the view adopted by the appellate Board cannot be interfered with by this Court, even in the opinion of this Court a different view can be formed. Para 29

       (E) Trade and Merchandise Marks Act, 1958(43 of 1958)-Transborder reputation-Meaning-When it can be claimed by foreign manufacturer- Mere knowledge of trade mark in Indian business circle is not enough-Active business activity in India to be established to avail this protection.

        Even when the goods are manufactured outside the Country, the foreign manufacturer or the importer can rely on the trade mark on the goods provided, they are in a position to establish the reputation in this Country in the trade mark and having a place of business in the country, is not at all essential for the manufacturer or importer of foreign goods. It is for the firm to establish an adequate good-will in the business which could be said to suffer damage by reason of the activity of the other firm. The firm must also establish that it has a business reputation in this Country which they are entitled to protect. It would not be sufficient even a mere knowledge of the make of the petitioner in the Country without any business activity. The petitioner cannot also take advantage of simple advertisement in India in order to prove that it is the user of a trade mark in this Country. Para 33