' AMIR HANI MUSLIM, J.-Through these proceedings, the appellants have impugned order dated 23- 5-2004 passed by the learned Single Judge in Suit No,677 of 2001, filed by the respondent, allowing the injunction application of the respondent observing therein that the respondent in terms of section 21 of the Trade Marks Act have right to use the Trade Mark which is subject-matter of this appeal, to the exclusion of the appellants.
2. The facts, as it appear from the pleadings of the parties are that the respondent filed Suit No,677 of 2001 in this Court for infringement of trade mark, passing off, perpetual injunction, rendition , of accounts and damages against the appellants. Alongwith the suit, the respondent made an application under Order XXXIX, rules 1 and 2, C.P.C. Praying therein that the appellants be restrained from infringing the alleged trade mark and from passing off the goods. It appears that the matter was contested by the parties before the learned Single Judge who by his order, impugned in these proceedings, had allowed the application of the respondent restraining the appellants from infringing, manufacturing selling, offering for sale, advertising, supplying, distributing or otherwise passing off the goods under the alleged trade mark ALETRIS CORDIAL'.
3. Learned counsel for the appellants has submitted that the impugned order is, bad in law and has failed to take notices of the facts' in its true perspective. He has further argued that the respondent had no prima facie case and were not entitled to the grant of injunction. According to the learned counsel once title in question of the trademark of a party was in dispute, the Court would not grant injunction in favour of such a party. He has relied upon the case of Shahjehan Khan v. Muhammad Tariq reported in 2002 CLC 571; case of Plasticrafters Ltd. v. Maniar Industries Ltd. Reported in 1980 CLC 812; case of Abdus Subhan v. Khurshid reported in 2000 YLR 2898 and case of Exide Pakistan Ltd. v. Pakistan Accumulator (Pvt.) Ltd. Reported in 2003 CLD 1117.
4. As against this, learned counsel for the respondent has supported the impugned order passed by the learned Single Judge.
5. We have examined the impugned order, which dealt with all the aspects of the arguments advanced by the parties. From the pleadings of the parties it appears that the respondent filed Suit No,677 of 2001 in this Court against the appellants claiming to be a Private Limited Company doing its business of medicines since 1948. In the plaint, the respondent has pleaded that besides the other medicines of various brands, which the respondent was manufacturing and selling, the respondent claims to be registered proprietor of trade mark "ALTERIS CORDIAL'. The respondent subsequently applied to the Registrar of Trade Marks to enter its name in the Register of Trade mark as subsequent proprietor of the said trade mark, which application was allowed and the respondent became subsequent proprietor of the trade mark. According to the respondent the homeopathic medicine by the name of ALETRIS CORDIAL' under the said trade mark on the device of the bottle in the hand, with distinctive, get up, design and yellow and black colour scheme, due to its high quality gained popularity and was in great demand and, therefore, the respondent got valuable reputation and goodwill in respect of the said medicine in the market.
6. In the year 1998 the respondent came to know that the appellant No,1 had applied and got registered the label of the respondent said registered trademark in the office of Registrar of Copyright as artistic copyright work label created by him. The respondent made an application for rectification under the Copyrights Ordinance, 1962, before the Board which application was allowed against which the appellants preferred an appeal which appeal is pending in the Lahore High Court. According to the respondent the appellant No,1 is manufacturing, using, selling, offering for sale his spurious medicine in the trade mark registered in the name of the respondent with the same colour, scheme, get up, design and style. The respondent has disputed the ownership of the Trade mark of the appellant No,l. The appellants in rebuttal filed Counter-Affidavit and Written Statement. It appears that the Honourable Single Judge heard the matter at length and thereafter has passed the impugned order with detail reasons.
7. We have heard both the learned counsel and have perused the record. The impugned order has been passed on an interlocutory application and the learned counsel for the appellants had argued that the grant of injunction when the damages were also claimed, ex-facie, was erroneous order. If such an argument is accepted, the usurping of goodwill of the trade mark by the appellants who, prima facie, have no right under the Copyrights Ordinance, 1962, would be unjust as has been held in the case of TAPAL Tea (Private) Ltd. v. Shahi Tea Company reported in 2002 CLD 1113. Pendency of.Proceedings in appeal preferred by the appellants against the order of the Board, is hardly a ground restricting the Court from granting injunction if a party was otherwise, entitled to such an injunction. Even otherwise, a person, prima facie, having no legal right, guaranteed in law, could not be allowed to continue his business in the face of the reasons advanced by the learned Single Judge in the impugned order. The impugned -order has been passed on the, material placed before the Honourable Single Judge and we find no reason to upset it. However, the appellants are at liberty to lead evidence to establish their'legal right to do the business. The Honourable. Single Judge has already observed in the impugned order that his findings were tentative in nature and is subject to evidence, which the parties may lead in support of their pleas.
Even observations in the impugned order were held to be tentative and would 'not prejudice either party before the Registrar, Trade Marks or before any forum.
8. We fully endorse the findings of the Honourable Single Judge given in the impugned order while granting injunction. This Appeal is, therefore, dismissed with no order as to costs. However, office is directed to fix Suit No,677 of 2001 for settlement of issues within fifteen days and after the issues are settled the matter be listed for evidence, out of turn, within_ 3 months after framing of issues.