1. KHILJI ARIF HUSSAIN, J.- The plaintiff filed suit for infringement and passing off and for permanent injunction, account, damages and other relief against the defendants and sought following reliefs:-
(a) For permanent injunction, restraining the defendants by themselves or through their servants, agents, dealers, affiliates or otherwise whosoever from infringing the Trade Mark ML, alongwith specific calligraphic style and get-up, of the plaintiffs registered inter alia under applications Nos.
2. 118491, 118496 and .1187497 in class 6 and from manufacturing, marketing, selling offering for sate, advertising or otherwise passing off the defendants products by themselves or through their agents, servants, ' dealers, affiliates or otherwise whosoever as and for the product of the company or their affiliates having a business connection with the plaintiffs, by use of the mark consisting or comprising the word LLI alongwith specific calligraphic style logo and label design of dental wheel or any other mark similarly or likely to be similar or closely resembling the plaintiff Trade Mark IIL alongwith specific calligraphic style and get up, as to be likely to deceive or cause confusion.
(b) For an order that the defendant do account for the profit wrongfully made by it by the use of the Trade Mark LLI alongwith specific calligraphic style- logo/label design of dental wheel which is similar and imitation of plaintiff Trade Mark IIL alongwith specific calligraphic style and get-up.
(c) That the defendants do surrender to - this * Honourable Court all dies, blocks, films and other material used for in relation to the defendants products under the adopted mark of LLI alongwith the specific calligraphic style logo/label design of dental wheel and all goods infringing the Trade Mark registered inter alia under applications Nos. 118491, 118496 and 118497 in Class 6 for destruction by this Honourable Court.
(d) That the defendants jointly or severally do pay to the plaintiffs sum of Rs.1,00,00,000 (Rupees Ten Million) as damages with interest thereon at 14% per annum from the date of the suit till payment.
3. Summons were issued to defendants and defendants were debarred from filing the written statement by Additional Registrar vide his order dated 1.10.2002. The plaintiff filed affidavit in ex parte proof in support of averments made in the plaint. I have heard Mr. Muhammad Nadeem Qureshi, learned counsel for the plaintiff, and also gone through the memo, of plaint as well as affidavit in ex parte proof and documents filed alongwith the plaint.
4. The plaintiff is a registered company duly registered with the Registrar Joint Stock Companies and engaged in the business of manufacturing and export of metallic pipes and tubes including steel pipes and galvanized (Gl) pipes, steel, iron and GI sheets whether cold rolled or hot rolled and all other non-precious metal goods included in Class-6 since 1948. It is stated that the said products of the plaintiff are marketed and sold throughout Pakistan as well as around the world under the trade-mark label design/logo of ML alongwith specific calligraphic style and get-up. The plaintiff's trade-mark with a specific calligraphic style and get-up was registered by the Registrar of the Trade Marks in Class-6 under No. 118491 on 31.12.1992 in respect of metallic pipes and tubes including steel pipes, iron pipes and galvanized (Gl) pipes, iron and Gl sheets whether cold rolled or hot rolled and all other non-precious metal goods. The Trade Mark 'ML' of the plaintiff with calligraphic style and get-up in Urdu was also registered by the Registrar of the trade-marks alongwith specific calligraphic style and get-up. The plaintiff stated that Trade Mark 'ML' with its get-up has been in use of the plaintiff since the start of their business in Pakistan in 1984 and same mark has been continuously used by the plaintiff on a very largest scale in relation to all the goods in Class-6, It is stated that in view of good quality, durability and effective performance of the products the said trade-mark is exclusively become associated with the plaintiff throughout the world including Pakistan. The plaintiff stated that the plaintiff exported goods throughout the world with the said trade-mark. The plaintiff further stated that the plaintiff incurred a considerable amount for advertisement and promotion of the said Trade Marks ML alongwith specific calligraphic style and get-up.
5. The plaintiff stated that the defendant imitated III alongwith specific calligraphic style and logo of dental wheel and same are identical to and or nearly resemble and or is confusingly and deceptively similar to plaintiff's renowned Trade Mark ML alongwith specific calligraphic style and get-up and the same are indistinguishable and clearly reflect the defendants intention to relate and confuse their products with those of the plaintiff.' It is also stated that the trade channels, sell outlet counter and consumer f the plaintiff and defendants products of the same, which are identical goods and the defendants are accordingly infringing and or attempting or intending to infringing the proprietary rights of the plaintiff in its Trade Mark ML alongwith specific calligraphic style and get-up, defendants causing the infringement and passing off and tried to pas of their goods as and for the goods of the plaintiff and or under its authority. The defendants have no right for adopting the said features, as there are many other choice/options open to them.
6. The trade-mark not only identifies the product and its origin, but also guarantees its quality while creating an image of the . Product in the mind of public particularly consumers. By the passage of time, marks associated with goods come to acquire reputation and goodwill around them, which properties of marks are acquired by his honest dealings and after huge advertisement infringement of right of the properties may result not in the shape of monitory loss, but may also cause irreparable loss and injury to goodwill, which proprietor of mark built up in years. While granting injunction in the matter where proprietor established his right of mark, Court can grant damages against the party, who infringed the trade-mark, to compensate the proprietor against the harm caused to him.
7. In view of above, I decree the suit of the plaintiff to the extent of prayer clauses (a) to (c). However, I dismiss the suit in respect of relief claimed in cause (d) of the prayer clause as the plaintiff has failed to produce any evidence in support of damages caused to the plaintiff.