1. MUSHIR ALAM, J.---Appellant have impugned order dated 11-5-2006 whereby the application under Order XXXIX, rules 1 and 2, C.P.C. Filed in Suit No.351 of 2003, seeking restraining orders against the defendant from the use of Trade Mark 'Al-Karam', was dismissed by the learned Single Judge.
2. It was contended by the learned counsel for the appellant that the appellant have adopted and are using the Mark "Al-Karam" on their goods being marketod locally and internationally, which mark has acquired substantial goodwill within and outside Pakistan. It is the case of the appellant that the respondent/defendant have adopted identical and confusingly similar Marks "Al-Karam" that is causing confusion and deception amongst the customers of the appellant particularly and in public generally. It was further stated that even the communication and correspondences are mistakenly delivered at each other address. In support of his contention he has placed reliance on 1987 SCM R 1090 and AIR 1980 Dehli 254. It was urged substantial goodwill and investment of the appellant is at stake. Mr. Saleem Ghulam Hussain learned counsel for the respondents contends that the' respondents are in the trade of terry towel and allied products since 1985. They have adopted subject mark and are operating in the name and style of "Al-Karam Textile" much before the appellant entered the field. NTN number, registration of the factory, registration of the firm with the Controller of Import and Export all in the name of "Al-Karam Textile" dates back to the year 1985.
3. Factory of the respondent was commissioned in 1986 and ever since they are dealing in terry towel and allied products. It was also stated that even the appellant had been dealing with the respondent since 2002, no objection was ever raised. It was further contended that in fact the appellant copied the mark of respondent "Al-Karam" as a trade mark and managed to obtain its registration by misrepresentation. Mr. Salim Ghulam Hussain points out that the appellant was incorporated much later in time whereas, the respondent was already in existence and using subject mark. Mr. Saleem Ghulam Hussain argued that dishonest adoption of the respondent's Mark, if any, is on the part of the appellant. It was without prejudice urged that the respondent's Mark 'Al-Karam' adopted by the appellant is being used side by side and is being used by both the parties, without any objection, no exception could be taken now. In support of his contention he has placed reliance on National Electric Fans Manufacturers v. S. Muhammad Din and Sons Ltd. 1980 SCM R 97 and General Biscuit v. English Biscuit Manufacturer (Pvt.) Ltd. 2004 CLD 680.
4. We have heard the arguments and perused the record. Learned counsel for the appellant does not dispute that the respondents had adopted the Mark "Al-Karam Textile" prior to the appellant. He however, contends that the stakes of the appellant are on the higher side. According to him if the respondent is allowed to continue the use of mark it would seriously prejudice the future growth of the appellant. Indeed as suggested by Mr. Khurram, registration of a mark gives monopoly to use the mark to the exclusion of any other person, but this not a rule absolute. Admittedly the appellant got the registration of the Mark "Al-Karam" under the Trade Marks Act, 1940, rights of exclusivity as conferred under section 21 of the Act, 1940 was subject to sections 22, 25 and 26. As held in the case of Abdul Wasim v. Haico and others 2002 CLD 623, right of registered user is subservient to the right of prior user. It was further held that "Exclusivity to use mark registered under section 21 of the Trade Marks Act, 1940 does not affect the right of prior user, may it be unregistered". It was further held that "Right in a trade mark created by prior user, despite non-registration was superior right recognized under section 25 of the (late Act of 1940). Contention of the learned counsel for the appellant that provisions of section 25 of the Act of 1940 have been misapplied are not sustainable, for the reason that the appellant acquired whatever right in the mark was subject to limitation contained in section 21 of the Act of 1940. It cannot therefore be argued that, since the appellant had filed suit when the Trade Mark Ordinance, 2001 was in the field. Fact remains that right acquired by the parties were made under the predecessor Act of 1940 such right would continue to be governed under successor Ordinance 2001.
5. Under circumstances we do not see any error apparent on the face of record nor in the order passed by the learned Single Judge. Appeal is dismissed.