KUNJ ALUMINIUM PRIVATE LIMITED Vs. KONINKLIJKE PHILIPS ELECTRONICS

JUDGEMENT

(1.) THE petitioner, M/s. Kunj Aluminium Private Limited, was granted registration of the mark Philips for non-electrical pressure cooker under class 21 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the act, for short) by the Registrar of Trade Marks, vide order dated 9th December, 1996, rejecting the objections of the private respondents M/s. Philips electronics NV and M/s. Philips India Ltd. (formerly known as Peico Electronics and Electricals Limited ). By the impugned order dated 14th August, 2008, the intellectual Property Appellate Board (Appellate Board, for short) has allowed the appeal of the private respondents and has cancelled the registration of the mark Philips in class 21 for pressure cookers granted to the petitioner.

(2.) LEARNED counsel for the petitioner had submitted that the impugned order passed by the Appellate Board is contrary to law as the petitioner had adopted the mark Philips for pressure cookers in 1982 and the said mark had become distinctive. It was submitted that the private respondents do not manufacture non-electric pressure cookers and that the learned Appellate Board has failed to take into consideration, difference between the articles manufactured by the petitioner and the articles/goods manufactured by the private respondents.

(3.) POWER of judicial review under Article 226 of the Constitution of India is not an appellate power. The impugned order, findings recorded therein and the contentions of the parties are not re-examined as in appeal, where subject to the statutory provisions, power of the appellate forum is coterminous. A Writ court is concerned with the decision making process, culminating in the final conclusion but not merits of the decision. Explaining this aspect, the Supreme court in H. B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority versus Gopi Nath and Sons, 1992 Supp (2)SCC 312 has observed as under:- "8. But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, to a conclusion which is correct in the eyes of the court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the court sits in judgment not only on the correctness of the decision-making process but also on the correctness of the decision itself. "