' S. ALI ASLAM JAFRI, J.--- This appeal is directed against the order, dated 18-11-1996 of a learned Single Judge of this Court on original side dismissing an application under Order 39, rules 1 and 2 read with section 151, C.P.C. In Suit No,80 of 1995 filed by the appellant/plaintiff seeking interim injunction pending the decision of the suit restraining the respondent/defendant by itself or by or through its servant, agents, dealers or otherwise whosoever from infringing the Trade Mark "Pears" of the plaintiff duly registered under No,4135 in class 3 and from manufacturing, packing, marketing, selling, offering for sale, advertising or otherwise passing off the defendant's products known as "Peal's" Transparent Soap or any other mark closely resembling to the plaintiffs Trade Mark "Pears".
2. The facts in brief relevant for the purpose of this appeal as disclosed in the plaint are that the appellant/plaintiff is a company incorporated in England and is a parent among a group of companies which include A&F Pears Limited. In Pakistan the company operates through its affiliate and subsidiary Lever Brothers Pakistan Limited, Karachi. Till 27th July, 1994 A&F Pears Limited was the proprietor of the Trade Mark "Pears" registered in Pakistan under the Trade Marks Act, 1940 under various Nos,4135 as of 8th March, 1949 and under Nos,9705, 45825, 54219 and 95167 all in class 3 of the International Classification of Goods. The registrations are valid and have remained in full force and effect throughout. By virtue of the said registration the appellant/plaintiff claims the exclusive right to use the said "Pears" Trade Mark in Pakistan in relation to the goods for which it is registered. It is the case of the plaintiff that it has acquired registration of the said trade mark in over one hundred countries of the world in respect of their product which is a transparent soap and is being sold under Trade Mark "Pears". The carton is white, orange and green coloured packed which displays the Trade Mark "Pears" and the words "Transparent Soap" or "Savon Transparent") in bold letters in black and the device of an oval-shaped transparent soap in orange colour representing the actual product with green leaves underneath together with the words "Pears Transparent Soap" embossed on such device of soap. Above such device of soap is a coat of arms in black with the words "By Appointment to Her Majesty the Queen". On the left bottom portion of the packet there appear the words "Net weight 75g". This product is sold in substantial quantities and widely advertised throughout the world for last many years and the plaintiff or its affiliates and predecessor have acquired and enjoy a very valuable reputation and goodwill internationally in respect of said trade mark. This soap was being sold and marketed in the territories of former British India and now in Pakistan since 1947. It has been widely advertised throughout the world through various media including international magazines and periodicals like Reader's Digest.
3. In the month of June, 1994, the appellant came to know through an advertisement in the newspaper of an idehtical product of respondent under the mark "Peal's" which has close resembling both visually and phonetically to the appellant's Trade Mark -Pears" and is likely to deceive and cause confusion in the minds of unwary purchaser. A legal notice dated 26th June, 1994 was addressed to the respondent to refrain from marketing and selling the said item by using the Mark "Peal's" as it was in violation of the Trade Marks Act, 1940. However, no heed was paid by the respondent as such the appellant had no option but to seek relief through the Court of Law and filed Suit No,80 of 1995 for infringement and passing off, injunction, accounts, damages, etc. An application (C.M.A. No,627 of 1995) for grant of interim injunction pending the decision of the suit was also filed.
4. Written statement was filed by the defendant denying the case of the plaintiff stating therein that the Mark "Peal's" being used by the defendant is visually and phonetically different from the Mark "Pears". The defendant claimed to have innovated a new word by adding letter "S" after word "Peal" and the mark being used by defendant is not creating any confusion or deception in general public. It was denied that the two marks are identical creating confusion and deception in the mind of unwary purchaser. Points of distinction between the two carton/covers were also pointed out. It was stated that the words "By Appointment to Her Majesty the Queen" and "A&F Pears Limited Soap Manufacturers London" do not find place in the carton used by the" defendant and there is difference in the packet, colour scheme and get-up which can be visualized differentiating the two commodities by a naked eye. It was further pleaded that the defendant's mark has acquired a wide range of popularity and established a goodwill between the general public of Pakistan as a result of publicity through various media of communication and since 1994 the customers purchase the said item knowingly that it is a Pakistani product and different from "Pears" soap. The locus standi of the plaintiff to file the suit was also questioned and it was further pleaded that the goods of the plaintiff are not available in the market of Pakistan and no proof has been placed to show its import in the country. It was denied that it is a case of infringement and passing-off or violation of any rights of the plaintiff. The defendant also claimed to be manufacturer of detergent/laundry soap under the trade name of "Peal's" which according to the defendant is appreciated and liked by the general public. It was also stated that the plaintiff-company became the proprietor of the said Trade Mark in Pakistan only on 27th July, 1994 and prior to that date there was no existence of any proprietor in Pakistan on behalf of A&F Pear Limited England. Finally it was argued that the plaintiff is not entitled for any of the relief claimed in the suit. Dismissal of the suit was prayed. The defendant also claimed damages.
5. Objections/counter-affidavit to the application under Order 39, rules 1 and 2 read with section 151, C.P.C. Were also filed by the defendant and the plaintiff filed rejoinder to the same. After hearing the learned counsel for the parties the learned Single Judge by his order dated 18-11-1996 refused to grant interim injunction by dismissing the application, hence this appeal.
6. Mr. Kh. Mansoor, learned.Counsel for the appellant, while referring to the fads as stated in the plaint has argued that the plaintiff/appellant being successor of A&F Pears Limited and having a registered trade mark in Pakistan as well, is the exclusive owner of the Mark "Pears" with a particular colour scheme, get-up and packing. The item being sold by the defendant under the name of "Peal's" is violation of the Trade Marks Act. Though, the defendant was called upon not to infringe the trade mark of the plaintiff or to pass-off but the defendant has not refrained from selling the said product i,e, a transparent soap under the Mark "Peal's" in the same type of carton of packing identical get-up and resembling colour scheme in order to deceive the unwary customer. The carton and packing as well as the get-up of the soap being sold by the defendant is almost identical, closely and confusingly similar to the get-up and Trade Mark "Pears". It is causing confusion amongst the general public and the defendant is trading unfairly upon the plaintiffs reputation and goodwill. The learned counsel has, therefore, argued that there is a strong prima facie case and balance of convenience in favour of the plaintiff and if the injunction is not granted as prayed, the plaintiff shall suffer irreparable loss. In support of his case for grant of temporary injunction the learned counsel has placed reliance on a number of authorities including (i) A&F Pears Ltd. v. Ghulam Haider and another PLD 1939 (W.P.) Kar. 154, (ii) Bandenawaz Ltd. v. Registrar of Trade Marks, Karachi and another. PLD 1967 Kar. 492, (iii) American Cynamide Company v. Arrow Trading Company Ltd. And another PLD 1992 Kar. 395, (iv) Messrs Chas A. Mendoza v. Syed Tausif Ahmed Zaidi and 2 others PLD 1993 Kar. 790, (v) Ekhlas Ahmad v. D.A.E. Health Laboratories Ltd., London and another 1980 SCM R 625 and (vi) A&F Pears Limited v. The Pearson Soap Company Limited 37 CLR 341 (a case decided by High Court of Australia).
7. Mr. Nadeem Qureshi, learned counsel for the respondent, has controverted the case as set up by the plaintiff. He has reiterated the same factual and legal position as taken in the written statement. His main contention is that the product of the defendant is being sold in Pakistan since 1994. It has a wide range of popularity and has established a goodwill between the general public of Pakistan and the customeRs, He has further argued that there are number of dissimilarities between the product of the plaintiff and that the defendant as pointed out in the written statement.
He has laid much stress on the point that the plaintiff has failed to show that its product "Pears" soap is being imported in Pakistan and being sold in market. According to him few cash memos.
Produced by the plaintiff in the absence of any documents from Customs or the Excise and Taxation Department, is no proof of, the fact that the said Pears soap is being imported or sold in Pakistan. He has further argued that the defendant has invested huge amounts on the publicity and introduction of their product in the market which has gained popularity and in case an injunction is granted his client shall suffer irreparable loss. He has further stated that in view of the dissimilarity in the packing, colour, name and get-up of the two products Peals and ,Pear's whose' dictionary meanings are also different, there is no prima facie case in favour of the plaintiff and the balance of convenience is also not in favour of the plaintiff. .8. The leaned counsel in support of his contentions has relied upon the cases of (i) Lallubhai Amichand v. The Punjab Aluminium Factory, Gujranwala PLD 1960 (W.P.) Kar. 545, (ii) Aktiesolaget Jonkoping Valcan, Sweden v. Registrar of Trade Marks, Karachi and another PLD 1975 Kar. 478, (iii)
Solosusice Narodni Podnik v. Sindh Match Works (Pvt.) Limited and another 1991 CLC 37, (iv)
Pakistan Tobacco Cotany Limited v. West End Tobacco Company 1992 CLC 1728, (v) American Cynamide Company v, Arrow Trading Company Ltd. And another PLD 1992 Kar. 395, (vi) Fisons Limited v. E.J. Godwin (Peat Industries) Limited 1976 RPC 653, (vii) Hawkins & Tipson td. (Proprietors of Green Brothers) v. Fludes Carpets Ltd. And British Floorchoth, Coy. Ltd. RPC 57 p.8, (viii) Johnson & Son (Loughborough) Ltd. v. W. Puffer & Company Ltd. 1930 RPC 47 and The Shorter Oxford English Dictionary, (2) Webster's Third New International Dictionary of the English Language (unabridged) in order to clarify the meaning of the two words "Pears" and "Peal's".
9. We have heard the learned counsel for the parties and considered the case-law cited by them in support of their respective contentions. We have also minutely examined the order impugned in this appeal refusing to grant interim injunction.
10. The ratio decideni in all the cases cited from either side appears to be that an unwary purchaser should not be deceived and a confusion should not arise in the mind of a common man so as to mislead him to purchase the product of one manufacturer for the other considering it to be the same which he actually wanted to purchase. The very purpose of enactment of The Trade Marks Act, 1940, as it appears from its preamble, is to provide effective protection of trade marks. A plain reading of section 10 of the Act clearly shows that no trade mark shall be registered of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and/or already stands registered in respect of same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion. The learned Single Judge while discussing the case-law from ether side has laid much stress on the point that the dictionary meaning of the two words "Pears" and "Peal's" are altogether different from each other.
With all respects and due deference we do not find ourselves persuaded to share his view. An unwary customer is never expected to go through the dictionary meaning of two identical, resembling and confusing trade marks of an item before purchasing the same if it has a similar type of name or packing. Mere difference in spelling or pronunciation is immaterial. In the case of DAE Health Laboratories, Limited 1980 SCM R 625 the Honourable Supreme Court of Pakistan while deciding the appeal in respect of dispute of a product of the appellant which is a hair removing cream being sold under the Trade Mark "Veet" and the other being sold by the respondent under the trade name of "Vest" has held as under:-- "We have ourselves come to the conclusion after having a Took at the photostat of the cartons being used by respondent No,1 and that of the carton sought to be got registered by -the petitioner under the name of 'Vest' that the trade mark under the name of 'Vest' is certainly likely to cause confusion and deception in the minds of the prospective customers specially in view of their visual phonetic similarity."
' Here in this case the two Trade Marks "Pears" and "Peal's" have similar visual and phonetic similarity. The first three letters "Pea" and the last letter "S" are common. Replacing alphabet "L" for "S" is sufficient to cause confusion in the mind of a common man and unwary purchaser. We have also compared the cartons/wrapper being used by the appellant/plaintiff and the respondent/ defendant and came to the conclusion that at a first glance there appears no such distinction that the two products could be found distinguishable with each other. It is certainly likely to cause confusion and deception in the minds of the prospective customeRs, Certain dissimilarities pointed out by the learned counsel for the respondent/ defendant or difference in dictionary meaning do not make any difference so far a common man or unwary purchaser is concerned.
11. The other contention of Mr. Nadeem Qureshe that the product of the appellant/plaintiff is not being imported or sold in Pakistan, has also no force. In our view in the presence of a registered trade mark of certain goods it cannot be argued that its import or sale is necessary in the market. It has been held in the case of Cooper's Incorporated v. Pakistan General Stores and another 1981 SCM R 1039 as under:- "Now although the appellant has not been selling its products in Pakistan because of import restrictions, this does not entitle the respondent to copy the appellant's trade mark, because by doing so, it is deceiving the public into thinking that its products are the products of the appellant."
12. The upshot of the discussion made above leaves no doubt to hold that a man of ordinary prudence and particularly unwary purchaser is likely to be deceived in view of common phonetic and visual name, get-up and wrapper/carton of the two soaps bearing Trade Marks "Pears" and "Peal's". We are, therefore, of the considered view that it is a fit case for grant of interim injunction as prayed, till the disposal of the suit as the appellant/ plaintiff has been able to show that it has a strong prima facie case and balance of convenience in its favour. We are also of the view that the appellant/plaintiff shall suffer irreparable loss if injunction, as prayed, is not granted. Resultantly, this appeal is allowed and interim injunction as prayed is granted till disposal of the suit. The costs in this appeal shall be calculated towards costs in suit.
13. By a short order dated 13-3-2002 we had set aside the impugned order and allowed the appeal and these are the reasons for the same.