MAULVI ANWARUL HAQ, J.---On 1-3-2000 the respondent filed a suit against the appellant. In the plaint, it was stated that he is engaged in manufacture of sweetmeat commonly known as 'Multani Sohdn Halva' since before the independence of the country. The trade mark was got registered under the Provisions of the Trade Marks Act, 1940, at No,62517. The appellant was an employee of the plaintiff. About a year ago, he left the service and started manufacturing the said product and marketing it under the word 'Hafiz'. The goods are being, sold in packets appended with the plaint which bear the same inscription, colour and design as the said registered design of the respondent and this has been done to entrap the unwary public. The said act of the appellants also constitutes infringement of the plaintiffs registered trade mark/name. Reference was also made to the earlier decision of the Registrar of Trade Marks at Karachi and the ,decision given by the learned Karachi High Court reported as 1987 CLC 1448 as also the decision of this Court reported as 1980 CLC 1268.
With these averments, permanent injunction was sought restraining the appellants from selling the 'Multani Sohan Halva' in packets (Annexures A and B to the plaint) or other identical packets inscribed with the name 'Hafiz', design, colour and general get up resembling in material particulars with the said registered trade mark and 'Hafiz Ka Multani Sohan Halva'. A decree for Rs,24,000 as damages was also sought. I may note here that during the pendency of the suit Muhammad Ramzan appellant died and his L.Rs, were brought on record. In his written statement filed in Court on 13-4-2000, he took the plea that he is selling the product under his own name i,e, 'Hafiz Ramzan Multani Sohan Halva' and has affixed his photograph. He has stated that he is a Hafiz-e-Quran and his full name is Hafiz Muhammad Ramzan. On merits, it was stated that the respondent was Kabab Farosh and started business of Halva in 1972. He admitted that he remained the employee of the respondent for more than 25 years but then he was kicked out and thereafter he started selling the Halva under the said name. I may further note here that it was not denied that the said trade mark stands registered in favour of the respondent. He, however, stated that his application is also pending. He also admitted that the Registrar has registered the word 'Hafiz' as a trade mark but this does not vest the respondent with any other right. Following issues were framed by the learned trial Court:--
(1) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? OPP.
(2) Whether the plaintiff is entitled to recover Rs,24,000 as damages as prayed for? OPP
(3) Whether the suit is not maintainable in its present form? OPD
(4) Whether the plaintiff has not approached this Court with clean hands? OPD
(5) Whether the suit is bad for non-joinder of necessary parties? OPD
(6) Whether the defendant is entitled to recover special costs under section 35-A of C.P.C. From the plaintiff, if so, to what extent? OPD
(7) Relief.
' Evidence of the parties was recorded. Vide judgment and decree dated 6-9-2005 the prayer for recovery of damages was refused. However, the other relief was granted. I deem it appropriate to reproduce hereunder the relief gnarled to the respondent by the learned Additional District Judge, Multan:-- "The suit for permanent injunction is decreed in favour of the plaintiff and against the defendants restraining the defendants from selling 'Multani Sohan Halva' in wrappers Exhs.P.2 and P.4 or other identical wrappers inscribed with the name 'Hafiz' in design, colour and general get up, resembling in material particulars, with the plaintiffs registered trade mark 'Hafiz Ka Multani Sohan Halva" Tayar Karda 'Hafiz Habib -ur-Rehman Hussain Agahi, Multan and in particular, deploying the name 'Hafiz' therein."
2. Mr. Ijaz Rahim, Advocate/learned counsel for the appellants contends that section 21 of the Trade M arks Act, 1940 (section 39 of the Trade Marks Ordinance, 2001) has to take effect subject to provisions of section 26 of the said Act, 1940 (section 42 of Ordinance of 2001). With reference to the case of The National Electric Fans Manufacturers (Regd.), Gujrat v. S. Muhammad Din and Sons Ltd., Lahore 1980 SCM R 97, he contends that since the word 'Hafiz' forms part of the name of Muhammad Ramzan deceased-defendant/predecessorin-interest of the present appellants, the registration of the said trade mark/name would not interfere with the bona fide use of the said name particularly when the care is being taken to use the said name i,e, 'Hafiz Muhammad Ramzan' and also picture of the said person. The precise contention is that the word 'Hafiz' is being used by the appellant without there being a likelihood of confusion or interference with the existing trade mark of the respondent. He accordingly contends that the learned trial Court could not have restrained his client from the use of the word 'Hafiz'. Mr. Hassan Bakhsh Khan, Advocate/ learned counsel for the respondent, on the other hand, refers to the cases decided by the learned High Court of Sindh at Karachi Multani Sohan Halva, Hussain Aghahi Multan v. Registrar of Trade Marks, Karachi and another 1987 CLC 1448 and Bashir Ahmad v. Registered Firm Hafiz Habib-ur-Rehman and another (decided by this Court and reported as 1980 CLC 1268). His contention is that the word 'Hafiz' is not a name or a part of a name and his client has been held to be entitled to the exclusive user of the same and its user by the other parties in a manner contravening of the provisions of the Trade Marks Act, 1940, has been held to be illegal.
3. I have gone through the trial Court records. I have already reproduced above the material contents of the pleadings of the parties. It will be seen that there is no dispute that Exh.P.1 and Exh.P.4 are the registered trademarks/design of the respondent. There is also no dispute that the appellant is selling his similar goods in wrappers and tins Exhs.P.2 and P.3. Now I find that the learned Additional District Judge has compared the said respective exhibits and has arrived at the conclusion that the public at large would be confused and misled. Now I find that the wrapper Exh.P.2 is absolutely similar to the wrapper Exh.P.1 (of the respondent). However, in wrapper Exh.P.2, in the red space within the circle the word 'Ramzan' has been added and down below the words 'Tayar Karda Hafiz Muhammad Ramzan, Hussain Aghahi Multan' have been stated. Similar is the case with the tins Exhs.P.4 and P.3. I am in agreement with the opinion formed by the learned Additional District Judge upon a comparison of the said two sets of wrappers and tins.
4. Now coming to the said contention of the learned counsel, I find that the said judgment in the case of The National Electric Fans Manufacturers (Regd.), Gujrat, was given in an appeal arising out of the matter of temporary injunction. However, while delivering the opinion of the Honourable Court, Mr. Justice Durab Patel (as his Lordship then was) recapitulated almost the entire law on the subject both from English as well as Indian jurisdiction. The dictum laid after the said comparative study of the precedent law is as follows:-- 'Therefore, although there have been periods in which the law was in a state of uncertainty, it is more clear that except perhaps in the case of newly-incorporated companies the law confers a right on a person to trade under his own name subject to the condition that he does not act dishonestly. As observed more than a hundred and fifty years ago by Turner, L. J., in Burgess's case "where the defendant sells goods under his own name and it happens that the plaintiff has the same name, it does not follow that the defendant is selling his goods as the goods of the plaintiffs.
It is a question of evidence in each case whether there is a false representation or not."
' This is in line with the wording of section 26 of the Trade Marks Act, 1940 and then section 42 of the Trade Marks Ordinance, 2001.
5. Now I have already noted above the relief that has been granted to the respondent by the learned trial Court. Now as per contention of the learned counsel, the relief granted is in accord with the said statutory provisions and the law declared by the Honourable Supreme Court of Pakistan and being relied upon by him except inasmuch as his client has been restrained from 'deploying the name; 'Hafiz' therein. His contention is that the word 'Hafiz' forms part of the name of Muhammad Ramzan deceased-defendant. On the other hand, the contention of Mr. Hassan Bakhsh Khan, Advocate, is that 'Hafiz' is not a part of the name but it depicts a person who has learnt the Holy Quran by heart.
6. Now registration of this trade mark i,e, 'Hafiz' in favour of the respondent was challenged before the Registrar. The objection was rejected. An appeal was filed in the learned High Court of Sindh at Karachi in the said case of Multani Sohan Halva, Hussain Aghahi Multan. Mr. Justice Saeed- - Zaman Siddiqui (as the Honourable Chief Justice then was) quoted with approval the following findings recorded by the Registrar and expressed agreement therewith:- "I have gone through the pleadings and the evidence filed by the respective parties and have also heard the learned counsel for the contesting parties at length. I have come to the safe conclusion that no case is made out for expunction of the Mark Hafiz registered under No,62517. The word Hafiz, adopted as a trade mark by the registered proprietor, in my estimation does not infringe section 8(a) or 8(b) of the of the Trade Marks Act.
'Hafiz' is a common dictionary word meaning a person who remembers by heart. It does not ordinarily mean that whosoever has adopted this word is necessarily a 'Hafiz-e-Quran'. Hafiz is a word from Persian language, meaning as above, and is also available in Arabic Dictionary where it means as "protector, guardian or supervisor." 'Hafiz' was also the title of a Persian poet and collection of his verses is known as "Deewan-eHafiz." We may look at this word 'Hafiz' from any angle or we may accept or adopt any of its meaning, and in my estimation it does not injure the religious feelings of a Musalman, nor does it hurt the religious susceptibility of any class of citizens in Pakistan.
' At page 269 of Standard Dictionary published by Kitabistan, Urdu Bazar, Lahore, meanings of this word Hafiz are given as a protector, a preserver, a guardian, a governor. By all these meanings the word Hafiz is not a word which cannot be accepted as a trade mark. Acceptance of word Hafiz as trade mark by the Trade Mark Registry can by no stretch of imagination be taken as acceptance in violation of any provision of the Trade Marks Act. This word is in common use in our daily conversation either as {{URDU TEXT}} or C, {{URDU TEXT}} Here the word Hafiz always means a protector, a guardian or a preserver, and I do not accept the plea of the applicant that this word injures the religious feelings of the Muslims or of any sect of the Muslims, if used as a Trade Mark.
' The other plea regarding publici juris is also not acceptable, because in the Trade Marks Act, a word becomes publici juris when it is declared common to the trade by the Registrar of Trade Marks, and for declaring a particular word/mark as common to trade or in other words becoming publici juris, the sole and final Judge is the Registrar of Trade Marks himself. In Re: National Starch Manufacturing Co. v. Munn's Patent Maizena and Starch Co. 1894 A. 275/63 LJPC 112, it was stated as follows;-- "Where applicant in 1889 registered in the Colony under the Trade Marks Act, 1865 word Maizena which they had invented in 1856 registered and enforced in other countries, but for a quarter of century allowed to be used in the Colony as a term descriptive of the article and not of their own manufacture thereof; held the word had thereby become public juris and as no longer registrable as a trade mark. See page 324 of the English and Empire Digest, Volume 43."
In the instant case the word Hafiz was adopted by the registered proprietor in the year 1963 and he worked thereon since then continuously and without any interruption, let or hindrance and at no stage it has been established that the word in question was abandoned by the registered proprietor. Then how the applicant can come out with the plea that the word Hafiz has become publici juris."
7. It will, thus, be seen that in the said circumstances of this case, the said word 'Hafiz' is neither descriptive nor it is surname and has been found capable of being registered as a trade mark.
There is no dispute that the mark stands registered since 1975 and otherwise being used by the respondent since before the partition of the sub-continent. To my mind, the said provisions of section 26 of the Trade Marks Act, 1940 (section 42 of the Trade Marks Ordinance, 2001) would be of no avail to the appellants. The R.F.A. Accordingly is dismissed but without any orders as to costs.
8. The records of the learned trial Court be remitted back immediately.
Appeal d s is sed.