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Judgment
S. Jagadeesan, J
The respondents No. 2 herein filed an application before the Assistant Registrar of Trade Marks for registering the Trade Mark (device of
Umbrella) in respect of tiles and bricks included in class 19, under Application No. 370874. The Assistant Registrar of Trade Marks rejected the
opposition filed by the appellant opposing the registration of the respondent's trade mark application and directed the registration of the said trade mark
by his order dated 10.9.96. The appellant filed a review petition before the Assistant Registrar of Trade Marks to review the earlier order dated
10.9.96 on the ground that the High Court of Madras has dismissed the O.P. No. 368/82 filed by the respondent for rectification of the register of
trade mark seeking the removal of the appellant's trade mark from the register. The appeal under O.S. Appeal No. 162 of 1992 filed by the
respondent against the said order in OP No. 368/82 has also ended in dismissal. In view of the said judgments of the High Court of Madras, the
respondent's trade mark cannot be registered and consequently the earlier order directing the registration is to be reviewed. The Assistant Registrar
under the impugned order dated 29.9.97 dismissed the said review petition on the ground that none of the grounds stipulated under Order 47, rule (1)
has been made out for review of the earlier order. Aggrieved by the same, the present appeal is filed by the appellant. The learned counsel for the
appellant contended that at the time of disposal of the opposition filed by the appellant opposing the application for registration filed by the respondent,
the OP No. 368/82 filed by the respondent for rectification was pending. By virtue of the dismissal of the said OP and the said judgment having been
confirmed by the Division Bench in OSA 162/92, the order of the Registrar directing the registration of the respondent's trade mark cannot be
sustained. Since the matter was pending before the High Court, at the time when the Assistant Registrar disposed of the opposition of the appellant,
the judgment of the High Court being a new material, on that basis the review application is maintainable.
We have carefully considered the above contention of the learned counsel for the appellants. Admittedly, when the Assistant Registrar of Trade
Marks disposed of the opposition of the appellant, the OP was pending on the file of the High Court. In fact, the Assistant Registrar in his original
order dated 10.9.1996 has mentioned the pendency of the OP and passed final orders. When that be so, it is for the appellant to prefer an appeal
against the said order of the Assistant Registrar. It is not open to them to wait for the disposal of the OP as well as the OSA preferred thereon and
then approach the Assistant Registrar for review. A perusal of Order 47 Rule 1 would reveal the limited grounds on which the review would lie which
are as follows:
(1) On the ground of discovery of new and important matter or evidence which after the exercise of due diligence, was nor within the applicant's
knowledge or could not be produced by him at the time when the decree was passed or order made; or
(2) On account of some mistake or error apparent on the face of the record; or
(3) For any other sufficient reason.
The Assistant Registrar in him impugned order has stated that none of the grounds has been made out. We are also in full agreement with the
findings of the Assistant Registrar of Trade Marks. The ground on which the review is sought for is mainly on the disposal of the OP which was filed
by the respondent, and the appeal on it OSA No. 162/92 which was pending before the Hon'ble High Court when the opposition was heard by the
Assistant Registrar. The decision on the appeal was issued on 17th April, 1996 which was subsequent to the hearing on 5.1.95 of the opposition filed
by the appellant against the registration of the respondent's trade mark application. It cannot be said that after due diligence the appellant was not able
to get the evidence or the material on the date of the original order of the Assistant Registrar. When that be so, we cannot find any reason to differ
from the view taken by the Assistant Registrar of Trade Marks. Consequently, the appeal is dismissed.