M/s. Supermax International Private Ltd. Vs. Samah Razor Blades Industries, II ADC (2005) 593

Case No: Civil Appeal No. 176 of 2002

Judge: Mohammad Fazlul Karim ,

Court: Appellate Division ,,

Advocate: Mr. Rafique-ul-Huq,Dr. M. Zahir,,

Citation: II ADC (2005) 593

Case Year: 2005

Appellant: M/s. Supermax International Private Ltd.

Respondent: Samah Razor Blades Industries

Subject: Trade Mark, Intellectual Property,

Delivery Date: 2004-1-20

 
Supreme Court
Appellate Division
(Civil)
 
Present:
KM Hasan CJ
Mohammad Fazlul Karim J
Md. Tafazzul Islam J
 
M/s. Supermax International Private Ltd.
...............Appellant
Vs.
Samah Razor Blades Industries
…............Respondents
 
Judgment
January 20, 2004.
 
The Paris Convention
Section 6, 2(2)
Trade Marks Act, 1940
Section 6(2),14, 27(1)(b),37,46
Thus a review is subject to law and rules and by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record. Unless the impugned order show as such merely reversing the order basing on the evidence on record would not render the order in review on those jurisdiction. Similarly, an error which has to be established by a long process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record….. (38)
 
Cases Referred to-
21 DLR (SC) (1969); 357 7 BLC AD 67; 44 DLR 39; Friends and Company Vs. Gorubedi Shah 21 DLR (SC) 351; SM Towfiq Vs. National PLD 1962 Karachi 355; 21 DLR (SC) 357; Wright, Crossly and Co. S.T.M. 15 RFC 131; Ellis & Co. T.M. 21 RFC 617; G.C.H.Q. Case (Council of Civil Service Unions V. Minister for the Civil Service 1985 A.C. 374); British Airways Board v. Laker Airways Ltd ((1985) A.C. 58); Kynaston V. Secretary of State for the Home Department (1981) 73 Cr. App. R. 281); Trawnik v. Lennox ((1985) 1 WLR 532); Malone v. Commissioner of Police of the metropolis ((1979) Ch 344; R. vs. Immigration Appeal Tribunal ex.p. Ali Ajmal, ((1982) Imm. A.R. 102, C.A.); R. v. Home Secretary ex. p. Brand ((1991) 1 A.C. 696); H.M. Ershad v. Bangladesh and others 7 BLC (AD) 67; Vishaka and others Vs. State of Rajsthan (Writ Petition Nos. 666-670 of 1992); Ekushey Television Ltd. Vs. Dr. Chowdhury Mahmood Hasan reported in 55 DLR (AD) (2003) 26; Zulfikar Ali Bhutto Vs. The State, PLD 1979 SC 741 PLD 1979 SC 741.
 
Lawyers Involved:
Rafique-Ul-Huq, Senior Advocate, (Abdul Malek, Senior Advocate with him), Instructed by Mvi. Md. Wahidullah, Advocate-on-Record - For the Appellant.
Dr. M. Zahir, Senior Advocate, instruct­ed by Md. Nawab Ali, Advocate-on-Record - For the Respondent No. 1.
Not represented - Respondent Nos. 2.
 
Civil Appeal No. 176 of 2002
 
Judgment
Mohammad Fazlul Karim J.
 
This appeal arising out of a review petition by leave is directed against the judgment and order dated 16.03.1999 passed by this Court in Civil Petition for Leave to Appeal No. 27 of 1999 filed against the judgment and order dated 3.11.1998 passed by the High Court Division in Trade Mark Appeal No. 4 of 1995.
 
2. The appellant being aggrieved by the said impugned judgment filed review petition and this appeal by leave arose to con­sider the submission of the learned Counsel for the appellant as under:
 
"Mr. Rafique-Ul-Huq, the learned Counsel argue while mov­ing this review that an error of law apparent on the face of the record has been committed in refusing to grant leave to appeal relying on the decision reported in 21 DLR page 357 since it is no longer applicable in view of Articles 2 and 6 of the Paris Convention for the Protection of Industrial Property, 1883 which was ratified and adopted by Bangladesh on March 03, 1991."
 
3. He further submits that question of application of section 6 of the Paris Convention was agitated before the High Court Division which will be apparent on the judgment itself where it is argued that though the petitioner's mark has not been registered yet it is entitled to protection under Article 6 of the Paris Convention to which Bangladesh is a signatory.
 
4. Mr. Rafique-Ul-Huq further argues that under Article 6 of the Paris Convention once a mark is registered in one country of the union protection is given to other coun­tries of the union.
 
5. He further submits that under Article 6(2) once a mark is registered in one country of the union a period of at least five years from the date of registration shall be allowed for requesting cancellation of such a mark. The petitioner has come within the period since the mark of the opposite party No. 1 was registered on 7.12.1991 and the petitioner applied for verification of "SUPERMAX" under Class-8 on 22.6.1993 on coming to know about the registration of the opposite party No. 1 mark. The petition­er filed an application for rectification under section 46 and rectification Case No. 166 of 1993 was initiated.
 
6. He further submits that this Court committed an error of law in holding that the petitioner in the application for rectifi­cation did not pray for cancellation of the trade mark on the basis of Article 6 of the Paris Convention."
 
7. The case of the appellant in brief is that the appellant filed an application under section 46 of the Trade Marks Act, 1940 read with Rule 65 made there under before the Register, Trade Marks Registry, Dhaka for rectification of the register removing there from the Trade Mark No.28355 in Class 8 for the Trade Mark "SUPERMAX" registered in the name of the respondent No.1 contending, inter alia, that they are the proprietor of the said Trade Mark. The word "SUPERMAX" with distinctive device was registered in India in the year 1966. Subsequently, the appellant got the Trade Mark "SUPERMAX' registered in their name in a number of Countries includ­ing member countries of the Union of Paris Convention for the Protection of Industrial Property, 1883 (hereinafter referred to as said Convention). The appellant exported the said product "SUPERMAX" blades to Bangladesh in 1984. In the same year, the Government of Bangladesh imposed ban on the import of blades. When the ban was lifted in 1993 their distributor M/s. Anwar and Brothers Company imported two con­signments of "SUPERMAX" blades. The appellant then applied for registration of their Trade Mark "SUPERMAX" under Class 8 on 22.6.1993 before the Registrar of Trade Marks Trade Marks Registry at Dhaka under section 14 of the Trade Mark Act, 1940. After filing of the above applica­tion for registration, the appellant for the first time came to learn that the respondent No.1 filed an application for registration of the Trade Mark "SUPERMAX" with iden­tical design and get up in every respect before the Registrar, Trade Marks Registry, Dhaka on 2.3.1989 and eventually it was registered on 7.12.1991. The appellant hav­ing come to know about the registration, filed an application for rectification before the Registrar under section 46 of the Trade Mark act, 1940 praying for removal of the Trade Mark "SUPERMAX".
 
8. The respondent No. 1 entered appear­ance in the said Rectification Case No. 166 of 1993 and contested the said proceeding.
 
The Registrar of Trade Marks after hearing the parties and perusing the documents allowed the Rectification Case by judgment and order dated 31.1.1995, against which the respondent No. 1 filed Trade Mark Appeal No. 4 of 1995 before the High Court Division, The appellant submitted before the High Court Division that under Article 2(1) of the said Convention Bangladesh having ratified and adopted the said Convention on 1.3.1991 is obliged to pro­tect the Trade Mark of the appellant regis­tered in any member Country of the Union of the said Convention. Under Article 2(2) of the said Convention to seek such protec­tion, a national of a member Country is not required to be domiciled or have establish­ment in such Country Under Article 6 of the said Convention any Country being a mem­ber of the Union is obliged to grant protec­tion of the well-known Trade Marks and "SUPERMAX" being a well-known Trade Mark, Bangladesh is obliged to grant pro­tection of the said Mark. Article 6A (1) pro­vides that every Trade Mark duly registered in the country of original shall be accepted for filling and protected as is in other Countries of the Union. Article 6A(1) is applicable to all Trade Marks, whether the same is well known or not.
 
9. The High Court Division after hear­ing the parties vide judgment and order dated 03.1.1998 allowed the appeal holding as follows: 
 
"It appears from this provision that this has not override any law of the country, this is in addition to the normal law of the land. We have already found that the mark of the objector-respondent was not in well-known use in this country. For attracting Article 6 of the Paris Convention there must be proof of well-known or wide use which is very much lacking in the case of the objector. Furthermore, the objector has not got his mark registered in this country. So he now cannot claim any protection under Article 6 of the Convention." 
 
10. This Division by judgment and order dated 16.3.1999 summarily dismissed the Civil Petition for Leave to Appeal No. 27 of 1999 as there was no point to interfere with the judgment passed by the High Court Division.
 
11. Mr. Rafique-Ul-Huq, the learned Counsel appearing for the appellant in sup­port of the appeal submits that this Court committed an error of law apparent on the face of the record in refusing to grant leave to appeal relying on the decision reported in 21 DLR (SC) (1969) 357 which was not applicable in the instant case in view of Articles 2 and 6 of the Paris Convention for the Protection of Industrial Property, 1883 (as amended from time to time), which was ratified and adopted by Bangladesh on 01.03.1991. The learned Counsel further submits that this Court committed an error of law apparent on the face of the record in refusing to grant leave to appeal on the ground of Article 6 of the Paris Convention for the Protection of Industrial Property, 1883 relying on a wrong quotation of the relevant provision of Article 6 by the High Court Division whereas under Article 6A(1) read with Article 2(2) of the said Convention it is not necessary for the appel­lant to prove domicile or establishment in Bangladesh when the same was admittedly registered by the appellant in other member countries of the Union such as India in 1966, UK in 1968, Australia in 1969, New Zealand in 1969, Singapore in 1988, Belgium in 1989, Italy in 1989 etc. Once it is registered in any member country of the Union of Paris Convention, it is entitled to get its Trade Mark to be protected in any other member countries including Bangladesh.
 
12. The learned Counsel further submitted that under the article 6A (1) read with Article 2(2) it is not necessary for the appel­lant to prove domicile or establishment in Bangladesh when the same is admittedly registered by the appellant in other member countries of the Union including India which is the member of the Union of the said Convention inasmuch as Bangladesh is a signatory to the said Convention. The learned Counsel has further submitted with reference to Article 25(1) of the Constitution that the State is obliged to respect the Paris Convention and on the basis of the said Convention should uphold the right freely to determine and built up its social and economic upliftment by way of system and means of its own choice and accordingly submitted that any Trade Mark registered in any member State is entitled to protect the said Mark in Bangladesh which is in use in Bangladesh by rectification of the registered of trade mark removing the trade mark of respondent No. 1, not in use for more than 5 years under the provision of section 27(1) (b) of the Trade Mark Act. The learned Counsel has also referred to a decision reported in 7 BLC (AD) 67 as regards the effect of Convention in our country and also decision reported in 44 DLR 39 regarding Article 13 of Universal Declaration of Human Rights having the spiritual dimension of man. The learned Counsel has further submitted with refer­ence to GATT i.e. General Agreement of Tariff and Trade for the protection of intel­lectual property right and the trade related aspect of intellectual property right provid­ing exclusive right and as such once a mark is registered in one country of the Union protection is given to other countries to the Union under Article 6 of Paris Convention and that once a mark is registered in one country of the Union a period of at least 5 years from the date of registration shall be allowed for requesting cancellation of such a mark as provided in Article 6(2) thereof and accordingly the appellant's goods having been imported earlier than the registra­tion of the mark of the respondent No. 1 who did not manufacture it so long, is pro­tected under the Trade Mark Act until 12.6.1993 and balance of convenience and inconvenience is in favour of the appel­lant's products and the respondent's regis­tration is liable to be struck off the Register.
 
13. Dr. M. Zahir, the learned Counsel appearing for the respondents has, however, submitted that although the appellant's trade mark was registered in India and other countries but it was never registered in Bangladesh. That mere use of the trademark from an earlier date was no ground to enti­tle the appellant to any protection as has been held in the case of Friends and Company Vs. Gorubedi Shah reported in 21 DLR (SC) 351 supported by another case of SM Towfiq Vs. National reported in PLD 1962 Karachi 355 and accordingly the High Court Division has rejected the said sub­mission regarding protection of trade mark of the appellant in Bangladesh inasmuch as the appellant has failed to prove itself to be an "aggrieved person" for maintaining an application for cancellation of the trade mark under section 46 of the Trade Marks Act read with Rule 65 of the Trade Mark Rules which the appellant has only sought to avail invoking the definition in section 2(2) of the Paris Convention.
 
14. The learned Counsel for the respon­dents as well submitted that in order to enable the appellant to file an application under section 46 of the Trade Marks Act the said person has to be an 'aggrieved' one in order to maintain on application for rectifi­cation of the trade mark register on the ground of contravention, failure to observe a condition mentioned in section 37 or any person or without sufficient cause wrongly remaining in the register or any error or defect in entering the register inasmuch as section 37 of the Trade Marks Act has no manner of application in the instant case. The learned Counsel has further submitted that Bangladesh being an independent country has the sovereignty to legislate any law and under the provision of Article 145 A of the Constitution though could ratify and enter into any treaty with the foreign countries but the same would not be the laws of the land unless ratified by the Parliament.
 
15. Dr. M. Zahir, the learned Counsel appearing for the respondent, however, submitted that this Court in its judgment under review considered the decisions reported in 21 DLR (SC) 357 inasmuch as dismissed the leave petition considering the provisions of Paris Convention for the protection of Industrial Property, 1883 and that it has been rightly found that the appellant is not an aggrieved person to maintain its applica­tion for rectification of the trade mark register.
 
16. Section 46(1) of the Trade Mark Act, 1940 authorizes that the High Court Division or the Registrar or the Tribunal may make such order as it feels proper for canceling or varying the registration of a trade mark on the ground of contravention or failure to observe a condition entered in the register in  relation thereto at the instance of any 'person aggrieved' and in the explanation thereto a person who has registered a trade mark in any acceding State or a non-acceding State under section 82A for the time being applies.
 
17. Section 6(2) of the Trade Mark Act, 1940 provides that any person aggrieved by the absence or omission or by any entry made in the register without sufficient cause or by any entry wrongly remaining on the register or any error or defeat in the entry may apply and the tribunal may make such order expunging or varying the entry.
 
18. Under section 37(1) of the Trade Mark Act, 1940 a registered trade mark may be taken off the register in respect of any goods registered on the application of any 'person aggrieved' on the ground either (a) that the trade mark was registered with­out any bonafide intention for registration that it should be used in relation to those goods on the part of the applicant or in case of the company and there has in fact been no bonafide use of the trade mark in rela­tion to those goods by any proprietor up to a date one month before the date of applica­tion or (b) that upto a date one month before the date of application, a continuous period of five years or longer has elapsed during which the trade mark was registered and during which there was no bonafide use thereof in relation to those goods by any proprietor therefor for the time being.
 
19. Rule 65 of Trade Mark Rules 1963 provide for the 'Forms' as to how any application to rectify or remove a trade mark from the register has to be filed with the Trade mark Registry.
 
20. Thus in order to file an application under section 46(2) the appellant has to be an 'person aggrieved' and the main criteria to hold a 'person aggrieved' is that he must be in the trade.
 
21. In the case of Wright, Crossly and Co. S.T.M. reported in 15 RFC 131 it has been held that the applicant in order to show that he is a person aggrieved must show that in some possible way he may be damaged or injured, if the trade mark is allowed to stand.
 
22. Similarly in the case Ellis & Co. T.M. reported in 21 RFC 617 it has been held that "every person also will in a rea­sonable probability suffer any injury or loss (using those words in a legal and not in a sentiment sense) from the other persons claiming to use it may be construed as a 'person aggrieved.'
 
23. From the above, the appellant by no stretch of imagination could be a 'person aggrieved' and had suffered or possibility of suffering loss or injury or damage, if the trade mark is allowed to stand as its prod­ucts admittedly were not in use or in circulator in this Country when the respondent's trade mark was registered in 1991.
 
24. It is the case of the appellant that it once exported blades to Bangladesh in 1984 and it never ever exported the blades either before or after liberation until the import was prohibited in 1984 or that after lifting of the ban in 1993 its product was found or in use in Bangladesh. Since there is no material and as a matter of fact the appellants' products were not in use in this Country or it was not even registered here, the appellant's claim of prior adoption and user of the trade mark or by virtue of long user a vested right has been accrued to them for rectification of the Register does not arise.
 
25. Now as regards the submissions of the Mr. Rafique-Ul-Huq, the learned Counsel for the appellant with reference to the Articles 2(2) and 6A(a) of the Paris Convention that the appellant could very well maintain the application as his trade mark has been registered in India and Bangladesh being a signatory to the said Paris Convention, the appellant's right is protected under the said Convention, Article 2 of the Paris Convention for the Protection of Industrial Property, 1883 (as amended from time to time) which was rat­ified and adopted by Bangladesh on 1.3.1991 read as under:
 
Article 2: (National Treatment of Nationals of Countries of the Union)
(1) Nationals of any country of the Union shall, as regards the pro­tection of industrial property, enjoy in all the other countries of the Union the advantages that their respective laws now grant, or may hereafter grant, to nationals; all without prejudice to the rights specially provided for by this Convention. Consequently, they shall have the same protection as the latter, and the same legal remedy against any infringement of their rights, provided that the conditions and formalities imposed upon nationals are complied with.
(2) However, no requirement as to domicile or establishment in the country where protection is claimed may be imposed upon nationals of countries of the Union for the enjoy­ment of any industrial property rights.
(3) The provisions of the laws of each of the countries of the Union relating to judicial and administra­tive procedure and to jurisdiction, and to the designation, and to the designation of an address for service or the appointment of an agent, which may be required by the laws on industrial property are expressly reserved. 
 
26. Article 6 of the Paris Convention for the Protection of Industrial Property, 1883 (as amended from time to time) which was ratified and adopted by Bangladesh read as under:
 
Article 6 (Marks: Protection of Marks Registered in one country of the Union in the other countries of the Union)
(1) Every trademark duly registered in the country of origin shall be accepted for filing and pro­tected as is in the other countries of the Union, subject to the reserva­tions indicted in the Articles, Such countries may, before proceeding to final registration, require the production of a certificate of registration in the country of origin, issued by the competent authority. No authentication shall be required for this certificate.
(2) The country of origin shall be considered the country of origin the country of the Union where the applicant has a real and effective industrial or commercial establishment, or, if he has no such establish­ment within the Union, the country of the Union where he has his domi­cile, or, if he has no domicile within the Union but is a national of a country of the Union, the country of which he is a national." 
 
27. Apart from the legal aspect as to whether the appellant could protect his interest in this Country on the basis of reg­istration of trademark in India, the factual aspect of proof of well-known or wide use of the appellant's products in that Country has to be established. In that view as well the appellant could not claim any protection under the said Articles.
 
28. As regards legal aspect, the said provision of Paris Convention could not override the laws of the land, which presup­poses a prior registration of the trademark to avail the protection.
 
29. The applicability of the convention hi any domestic Court has been aptly dis­cussed by O. Hood, Phillips and Jackson, in Constitutional Law and Administrative law, 8th Edition pages 4707 471 and 474 and we feel tempted to quote the passage as under: 
 
"The European Convention before the Human Rights Act 1998 Increasingly as litigants obtained judgments at Strasbourg against the United Kingdom the Convention began to be cited in our domestic Courts. This was despite the fundamental constitutional prin­ciple that treaties cannot affect rights and duties of persons in the United Kingdom unless their provi­sions have been incorporated into domestic law by legislation. That fundamental principle was illustrat­ed in the G.C.H.Q. Case (Council of Civil Service Unions V. Minister for the Civil Service 1985 A.C. 374) when Lords Faster in the part of his speech headed "Minor matters" declined to consider the interpreta­tion of certain international labour conventions because they were "not part of the law in this country". In British Airways Board v. Laker Airways Ltd ((1985) A.C. 58). Lord Diplock said, "The interpretation of treaties to which the United Kingdom is a party but the terms of which have not either expressly or by reference been incorporated in English domestic law by legislation is not a matter that falls within the interpretative jurisdiction of an English Court of law". Nonetheless the Convention was frequently cited in the Courts and judges on various occasions referred to its provisions although no decision can be said to have been based on the Convention. In Kynaston V. Secretary of State for the Home Department (1981) 73 Cr. App. R. 281) the Court of Appeal held that the clear words of the United Kingdom mental health legislation prevailed over the provisions of Article 5 (right to liberty of the person). Article 6 (right to a hearing) was involved in Trawnik v. Lennox ((1985) 1 WLR 532). Sir Robert Megarry V.C., said "The European Convention of Human Rights is not, of course, law though it is legitimate to consider its provisions in interpreting the law; and naturally I give it full weight for this purpose." Nonetheless, he (and sub­sequently the Court of Appeal) applied the letter of the Crown Proceedings Act 1947. Article 8 (respect for private and family life) was similarly invoked in vain in an attempt to challenge the legality of telephone tapping in Malone v. Commissioner of Police of the Metropolis ((1979) Ch 344; post. Para 22-012 and Para. 26-014). Article 8 and Article 14 (enjoyment of rights without discrimination) have failed to aid immigrants in the light of the provisions of the Immigration Act, 1971 and the Immigration Rules: "The Convention is not part of the law of this country. If it happens to be in accord with the law..........then it is a matter of which we cannot take account: R. vs. Immigration Appeal Tribunal ex. p. Ali Ajmal, ((1982) Imm. A.R. 102, C.A.) per Lord Lane CJ. In R. v. Ministry of Defence ex.p. Smith ((1996) Q.B.517) the Divisional Court and Court of Appeal felt found to disre­gard Article 8 when considering the dismissal from the armed forces of the applicants because of their sexu­al orientation-although they have little doubt of the applicants' ulti­mate success at Strasbourg." 
 
"The House of Lords in R. v. Home Secretary ex. p. Brand ((1991) 1 A.C. 696) while recogniz­ing that the Courts could have recourse to the Convention when faced with an ambiguous statute refused to go a step further and hold that where wide powers of decision making were given to a minister by an unambiguous statutory provision, the minister in exercising those powers should conform to the provisions of the Convention. To do so, in the words of Lord Ackner, would be to incorporate the Convention into English law by the back door."
 
30. No decision of the British Courts before the coming into effect of the Human Rights Act was actually based on the European Convention. The dicta on the construction of statutes not purporting to implement a treaty do not follow from precedents concerned with construing statutes consistently with the general princi­ples of international law or statutes designed to implement particular treaties on such matters as diplomatic privilege. It is submitted, further, that their approach is potentially dangerous. The Judges wish to keep government officers of their international obligations, but in fact they are chal­lenging the cardinal principle laid down in the Case of Proclamations and our own Bill of Rights of 1688, that the Executive by itself cannot make law for this realm. Indeed, one might argue that the fact that Parliament had refrained from incorporat­ing the European Convention into our law indicated an intention that its provisions should not be taken into account by the Courts, so that Convention ought not to be cited by counsel or looked at by judges."
 
31. Under our Constitution it is the Parliament in general or the President under certain circumstances legislate and not the Government of the People's Republic of Bangladesh and the Courts of law does not require to have regard to the acts of the Government including entering into treaties or adopting the convention when interpret­ing the law.
 
32. Though International Convention, however, could be recognized upon ratifica­tion but could only be applied in our Country only when its provisions are incor­porated in our Municipal laws and thus for enforcing any International Covenants under any Convention to which this Country is a signatory, the provisions of the Convention have to be incorporated in our domestic law. This principle find support in the case of H.M. Ershad v. Bangladesh and others reported in 7 BLC (AD) 67 wherein Chowdhury J. held: -
 
"True it is that the Universal Human Rights norms, whether given in the Universal Declaration or in the Covenants, are not directly enforce­able in national Courts. But if their provisions are incorporated into the domestic law, they are enforceable in national Courts, the local laws, both constitutional and statutory, are not always in consonance with the norms contained in the international human rights instruments. The national Courts should not, I feel, straightaway ignore the internation­al obligations, which a country undertakes. If the domestic laws are not clear enough or there is nothing therein the national Courts should draw upon the principles incorporat­ed in the international instruments. But in the case where the domestic laws are clear and inconsistent with the international obligations of the state concerned, the national Courts will be obliged to respect the nation­al laws, but shall draw the attention of the law makes to such inconsistencies."
 
33. In the case of Vishaka and others Vs. State of Rajsthan (Writ Petition Nos. 666-670 of 1992) the Indian Supreme Court asserted its power under Article 32 of the Indian Constitution for enforcement of fun­damental rights and executive power of the Union to meet the challenge to protect the working women from sexual harassment and to make their fundamental rights mean­ingful giving direction using the International Convention on Elimination of Discrimination Against Women (CEDAW) and norms in construing fundamental rights expressly guaranteed in the Constitution which embody the basic concept of gender equality in all spheres of human activity in the absence of any specific legislation to that effect in the country.
 
34. But in the instant case, we have the Municipal legislation i.e. Trade Marks Act, 1940 and rules framed thereunder to regu­late, register, protect and cancel etc. of the Trade Mark and as such the International Convention, to which though we are signa­tories but the provisions thereof which are available in the member Countries are inop­erative in this Country for the reasons aforesaid and as such the provisions of Paris Convention on Intellectual property right are not applicable in this Country.
 
35. Furthermore, arguments on Article 6 of the Paris Convention were put forward before this Court at the hearing of the leave petition and this Court in the impugned judgment found as under:
 
"As to the argument of the peti­tioner based on article 6 of the Paris Convention it will be enough to point out that it was not the cause of the petitioner in the application for rectification that prayed for cancel­lation of the respondent's trade mark on the grounds as set out in the said article." 
 
36. In view of the above, we find no substance in the submissions of the learned Counsel for the appellant that once a trade mark is registered in any member country of the Union of Paris Convention it is enti­tled to get its trade mark protected in any other member countries.
 
37. Review under Order XXVI of the Supreme Court of Bangladesh (Appellate Division) Rules, 1988 is subject to the law and practice of the Court and the Court may of its own motion, or on the application of a party to a proceeding on the ground and sailor to those mentioned in Order XLVI rule 1 of the Code of Civil Procedure could review its own order/decision.
 
38. Thus a review is subject to law and rules and by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error apparent on the face of the record. Unless the impugned order show as such merely reversing the order basing on the evidence on record would not render the order in review on those jurisdiction. Similarly, an error which has to be established by a long process of reasoning on points where there may conceivably be two opinions can hard­ly be said to be an error apparent on the face of the record. In the instant case the learned Counsel has submitted the grounds based on some material which were in existence at the time of disposal of the petition by the High Court Division and submitted before this Court and answered by the impugned judgment. There may be cases where a review is allowed on any ground urged at the original hearing whenever the Court considers that it is necessary to correct an evident error apparent on the face of the record or omission. But the case referred to by the learned Additional Attorney General in the case of Ekushey Television Ltd. Vs. Dr. Chowdhury Mahmood Hasan reported in 55 DLR (AD) (2003) 26 held as under: "A case is decided on its factual matrix. When the facts materially vary, the law carefully shifts its focus. Therefore, the conspectus of facts on which the decision is founded is always critical. In a granted situation the conclusion remains impeccable, But if it can be shown that the situation differs from that which was taken for granted at the time of hearing of the appeal or the petitions for leave to appeal the decision in a review petition may be different. But no alternative situa­tions were presented before us at the hearing of the review petitions. On the other hand the facts upon which our judgment in the petitions for leave to appeal rests, have remained undisputed throughout the different stages of the litigation and all the Courts, on the facts, found malafide in processing the evaluation report." "It may be stated here that the learned counsels for the petitioners, in their review petitions, have advanced submissions, which went deep into the merits of the case. They also relied on the points raised by them in the leave petitions in this respect to show that the Court has committed error apparent on the face of the record. The elaborate arguments that have been advanced was done at the leave petitions but those have come to an end with the rejection of the leave petitions by the petitioners and now cannot be reopened in a review petition."
 
39. The error apparent on the face of the record has been considered by this Court in the case of Zenith Packages Ltd. Vs. Member, Labour Appellate Tribunal, Dhaka and others reported in 52 DLR (AD) 160 as under: 
 
"In view of the aforesaid findings the grounds upon which review of the judgment is sought have already been decided. A wrong decision on interpretation of certain provision of law or principle laid down in a deci­sion relied upon by a Court are no grounds for review" 
 
40. Error apparent on the face of the record" cannot be said to be so where a lengthy argument is required as is argued by the petitioner, Therefore on the grounds urged for review of judgment by the appel­lant and the way it was argued before us it seems to us that we are asked to sit over our judgment by way of appeal in circuitous way addressing a lengthy and repeated sub­missions which already received our due notice in the judgment sought to be reviewed.
 
41. In the case Zulfikar Ali Bhutto Vs. The State reported in PLD 1979 SC 741 it was held on review as under: 
 
"It will be seen that according to rule 1 of Order XXVI of the Supreme Court Rules the power of review is to be exer­cised in a criminal proceeding on ground of an error apparent on the face of the record, and in a civil proceeding on grounds similar to those mentioned in Order XLVII, rule 1 of the Civil Procedure Code. Now, as rule 1 of Order XLVII of the Code also speaks of a mistake or error apparent on face of the record, this ground for review is common to both the civil and criminal proceedings in this Court." 
 
"From what has been said in the preceding paragraphs, it follows that in order that an error may be a ground for review, it is necessary that it must be one which is apparent on the face of the record, that is, it must be so manifest, so clear that no Court could permit such an error to remain on the record. It may be an error of fact or of law, but it must be an error, which is self-evident and floating on the surface, and does not require any elaborate discussion or process of ratiocination. The contention that the exposition of the law is incorrect or erroneous, or that the Court has gone wrong in the appli­cation of the law to the facts of the particular case; or that erroneous inferences have been drawn as a result of appraisal or appreciation of evidence, does not constitute a valid ground for review. However, an order based on an erroneous assumption of material fact, or with­out adverting to a provision of law, or a departure from an undisputed construction of the law land the Constitution may amount to an error apparent on the face of the record. At the same time if the judgment under review or a finding contained therein, although suffering from an erroneous assumption of facts, is sustainable on other grounds avail­able on the record, then although the error may be apparent on the face of the record it would not justify a review of the judgment or the find­ing in question. In other words, the error must not only be apparent, but must also have a material bearing on the face of the case. Errors of incon­sequential import do not call for review." 
 
42. In the aforementioned decision PLD 1979 SC 741 Supra it has further been held that: 
 
"It is also to be borne in mind that as finality attaches to the judgments deliv­ered by this Court, which stands at the apex of the judicial hierarchy, a review, proceeding is neither in the nature of a re-hearing of the whole case, nor is it an appeal against the judgment under review. It is accordingly not permissi­ble to embark upon a reiteration of the same contentions as were advanced at the time of the hearing of the appeal, but were considered and repelled in the judgment under review, in an effort to discover errors said to be apparent on the face of the record." 
 
43. We are in respectful agreement with the aforesaid observations, which manifests the cor­rect exposition of law and fact on the subject.

This appeal is, accordingly, dismissed with­out any order as to cost.
 
Ed.