' ALI NAWAZ CHOWHAN, J.---This judgment is going to dispose of F.A.O. No,71 of 2004, F.A.O. No,72 of 2004 and F.A.O. No,241 of 2004. These relate to the registration of trade mark and the impugned order which attracts these causes in appeal is an order dated 6-12-2003 passed by the learned Registrar of Trade Marks in appellant's Opposition I\ o.178 of 2002 and Opposition No,276 of 2002 and the third F.A.O. Is against refusal of an application for taking action under section 14(3) read with section 46 of the Trade Mark Act of 1940.
2. The appellant i,e, Mehran Engineering Works are aggrieved because the trade mark was allowed to be registered in the name of the respondent's side and the opposition applications against this filed by the appellant were dismissed by the Registrar Trade Marks. Who also dismissed another application of the appellant asking for registration of this trade mark in favour of the appellant.
3. Precisely, vide his judgment of 6th December, 2003, with respect to disallowing the opposition petition, the Registrar Trade Marks while releasing the opposition disbelieved the case of the appellant with respect to prior user of the trade mark i,e, since 1995 and granted the registration in favour of the respondent's side who had claimed the use of the trade mark since 1992.
4. In F.A.O. No,241 of 2004, the application for registration of the same trade mark was refused in view of the fact that the opposition applications aforementioned had been already refused.
5. Precisely, it is the case of the appellant that the Registrar Trade Marks did not advert to the evidence which was produced in the petition for registration i,e, F.A.O. No,241 of 2004 and he misplaced the file wherein were placed documents to establish that the appellant was the prior user i,e, since 1995. It was further stated that the Registrar had committed certain irregularities while disposing of this case. That he agreed to advertise the case in the trade mark Journal but later resiled from the same on frivolous ground.
6. Regarding the other two Appeals bearing Nos. F.A.O. No,71 of 2004 and F.A.O. No,72 of 2004, it was said that the opposition petitions were wrongly dismissed.
7. The question is whether after the dismissal of the opposition applications aforementioned on 6th December, 2003, could the Registrar proceed with the appeal which is the subject-matter of F.A.O.
No,241 of 2004.
8. Some dates too are relevant. The applications for registration which is the subject-matter of F.A.O. No,71 of 2004 and F.A.O. No,72 of 2004, were said to have been filed on 8th February, 1998 and the applications were allowed to proceed further in the matter for purposes of registration. Later the opposition applications were filed on 18-1-2003, whereas the order pertaining to F.A.O. No,241 of 2004 was given on 3-7-2004. With respect to the former two opposition petitions, the order was given on 6-12-2003.
9. Therefore, the opposition petitions having been disallowed, it was not possible for the Registrar to proceed with the application for registration of the same trade mark in which he had refused the opposition petition on 6-12-2003 and, therefore, rejected the same on 2-7-2004.
10. What bothered the appellant was the separate dealing of the registration matter for sometime in these connect( d matters with the result the earlier decision was given on 6-12-2003 in opposition proceedings, whereas, in the proceedings for registration the decision was given on 2- 7-2004. Had these been taken up and decided together. Perhaps the acrimony against the order would not be there. As to why the Registrar staggered the issues and did not decide these together although both were pending and both were against the same parties and were filed by the same petitioners, is a mystery. But speaks of "maladministration" at his end. However, the ultimai e decision in disallowing Application No,241/241 in view of the earlier orders of 6th December, 2003 in the opposition application, was not an error except for what has been observed above.
11. It is argued by the learned counsel for the appellant that section 46 of the Trade Marks Act, 1940, required separate decisions in these matters. The question is that if the opposition applications had been disallowed and these were in the knowledge of the Registrar, how could he proceed under section 46 separately and create an adversity in judgments? He could not have done so.
And, therefore, I disagree with the contention that despite the decision given in the opposition applications he ought to have continued to proceed further under section 46. He had to decide the application under section 46 in context with the earlier decision and not in isolation. This argument has, therefore, no weight.
12. Before this Court, another argument of the learned counsel for the appellant was that the Registrar did not advert to documents showing the appellant as prior user since 1995. This Court allowed opportunity to the appellant to produce those documents before this Court for establishing what he was stating and for making a prima facie case in that respect. He has produced some photocopies of documents which do not help him at all.
13. (a) Document 'A' is a certification given by Multan Chamber of Commerce & Industry speaking of a period when the appellant was registered with Chamber of Commerce and not with the Trade Mark Registrar, so the Chamber of Commerce had no locus standi to speak on the subject of prior user. (b) The next is a certificate of registration of the copyright but this is issued on the August, 2001, and does not provide a link with respect to the appellant being a user prior. The rest are the private vouchers pertaining to certain supplies made by the appellant in the name of Mehran Engineering Works and do not assist us in resolving the proposition in hand.
14. Another is a certificate of registration of firm which pertains to 26-1-1997. There is also a letter from the department of Income Tax reflecting that Mehran Engineering Works has been given a national tax number. It makes no mention of the use of the trade mark "KAM" and the sale tax return also pertains to the year 1997 providing no help in this matter.
15. So these documents are of no use or of help in coming to a conclusion that there is a prima facie case with respect to the prior user and, therefore, the non-advertence of the Registrar to these documents has led to miscarriage of justice requiring the remand of the case for adjudication on merits.
16. Anyway, having said that this Court has no hesitation in making reference under section 37 of the Trade Marks Act, 1940, and to observe that in case the appellant is able to establish from authentic documents that he has a case of prior user, he may invoke the provisions of section 37 before the Registrar but only on a serious basis.
17. The upshot of the above discussion is that these matters fail and are disposed of accordingly.