1. S. ALI ASLAM JAFRI, J.---This is an application under Order XXXIX, rules 1 and 2 read with sections 94 and 151, C.P.C. Filed by the plaintiff seeking injunction to restrain the defendants jointly or severally, their agents, men, representatives and any person claiming through or on behalf of defendants from directly or indirectly selling, marketing and/or offering for sale any products under the trade mark/brand name MIBS and/or from interfering and/or hindering illegally the business of the plaintiff or by committing actions that are detrimental and prejudicial to the rights of the plaintiff in respect of the Trade Mark MIBS in any manner whatsoever and/or in business interest of the plaintiff in the manufacturing, marketing, selling and/or supplying drug under the Trade Mark MIBS in any manner whatsoever, till the disposal of the suit. In support of this application an affidavit has been filed by an authorized officer of the plaintiff stating therein that after being satisfied that TEGASERDD Malcate is open for public in Pakistan, the plaintiff initiated steps for commercial use of the said molecule in early 2002 and after completion of all the ground work i.e. Analytical studies, market feasibility, brand adoption, packing, pricing etc., the plaintiff applied for registration of the drug with the Ministry of Health, Government of Pakistan in October, 2004. The brand name/Trade Mark MIBS derived by the plaintiff from "Managing Irritable Bowel Syndrome" in the year 2002, as such by adoption, selection and subsequent use of the Trade Mark MIBS by the plaintiff was meaningful and purposeful. It is further stated that after enormous working and huge investment in terms of money, time and labour for detailed studies, formulation of marketing strategies the plaintiff succeeded in obtaining registration of the drug under the trade name MIBS. The plaintiff in order to secure its right under the law in respect of the Trade Mark MIBS, has also applied for registration under the Trade Marks Law by filing such application before the Registrar of Trade Marks, which is under process of registration. The plaintiff claims to have learnt that defendant No.2 in active connivance and collusion of defendant No.1 has adopted and is on the verge of commercially using the Trade Mark MIBS for similar product containing. Molecule Meboverine Hydrochloride, which according to the plaintiff is musculotropic anti-spasmodic and have thus vouched to exploit the same position by using exactly similar and deceptively identical to the Trade Mark MIBS of the plaintiff. The plaintiff further stated to have filed an application in January 2005 for drug registration with the Ministry of Health but according to the plaintiff due to oversight the concerned Ministry granted registration to defendant No.2. The plaintiff being aggrieved has made application to concerned Ministry on 4-7-2005 with a prayer that defendant No.1 be directed to change the name of its drug to make it absolutely dissimilar and distinguishable from the drug of the plaintiff under Trade Mark MIBS, however, the plaintiff has not received any affirmative response from any corner. According to the plaintiff, the defendant No.2 has no legal right or authority to use the Trade Mark MIBS and to market and sell its drug under the offending Trade Mark MIBS. The plaintiff has therefore, filed this suit for permanent injunction to the above extent and declaration that Trade Mark MIBS is exclusive property of plaintiff and it is not open to any person legal or natural in Pakistan for its use in any manner whatsoever. Along with the plaint, this application for grant of interim relief has also been filed. Defendant No.2 has filed counter-affidavit resisting the grant of injunction and praying for rejection of the plaint under Order VII, rule 11, C.P.C.
2. As the defendant No.2 is carrying on business in Swat N.-W.F.P. Permanently and is neither manufacturing nor selling its product or owns any office within the jurisdiction of this Court, as such no cause of action has accrued at Karachi. It is further submitted that defendant No.2 is marketing and selling the products including " Mibs" within the territorial limits of N.-W.F.P. And the packet containing the medicine Mibs also contain this term "Swat" printed thereon, which according to the defendant means that pack has been marketed exclusively for sale within the territorial limits of Swat and its sale in Karachi is totally unauthorized and the invoices produced by the plaintiff have been prepared fraudulently in order to create jurisdiction. It has been denied that defendant No.1 is authorized distributor of defendant No.2 and the said medicine has not been sold anywhere else except in Swat. The defendant has further stated that its drug was Registered vide No.036823 at Serial No.19 under section 7 of the Drugs Act, 1976 and Rules 28, 29 and 30 of the Drugs Licensing, Registering and Advertising Rules, 1976 by Government of Pakistan, Ministry of Health vide notification dated 31-1-2005. Photocopy of Notification has been filed. Defendant No.2 has further stated that the plaintiff by misrepresentation got its product similar in name i.e. Mibs registered vide Registration No.039170 dated 20th May, 2005 and Deputy Drugs Controller, (Reg-11 south)
3. Ministry of Health, Islamabad has served the plaintiff with a notice dated 21st July, 2005 since the plaintiffs product has resemblance with already registered product i.e. "Mibs Tablets", Registration No.036823 of Messrs Shaheen Pharmaceuticals Swat/Defendant No.2, the plaintiff has, therefore, been advised to change the aforesaid name and propose another three names along with undertaking that the names have no resemblance with already registered drug. Photocopy of notice has been filed. It is further stated on behalf of defendant No.2 that since the plaintiff could not get any relief from Ministry of Health, hence he has filed this Suit. Defendant No.2 claims to have invested huge amount and further stated that plaintiff has not come to the Court with clean hands and has suppressed the material facts and has also not made Ministry of Health as party, which had granted permission to defendant No.2 for manufacturing and sale of the said drug from 31-1-2005 much prior to the user of the plaintiff and as such the plaintiff cannot market the drug without its registration. It is further stated that in the price list filed by plaintiff, (Annexure D/2), there is no mention of the price of the drug MIBS. It is further stated that plaintiff has illegally and wrongfully applied for the trade mark registration of 'Mibs' on 2-6-2005 while defendant No.2's drug already stand registered on 31-1- 2005. It is further stated that the plaintiff has intentionally and deliberately not disclosed the notice dated 21-7-2005 sent to him by Deputy Drugs Controller Islamabad directing him to change the name of the medicine, to the trade mark authorities and even if its trade mark registration is granted, the plaintiff cannot manufacture or market the drug in the name of Mibs under the Drugs Act, 1976. Defendant No.2 further stated to have also applied for registration of Trade Mark 'Mibs' on 9-8-2005 as well as for registration of copyright. Photocopy has been filed. It has been again stated that marketing activity of defendant No.2 is limited only upto N.-W.F.P.
4. In rejoinder, same facts have been reiterated on behalf of the plaintiff, as stated in the plaint and the affidavit filed in support of the application. With reference to letter dated 21-7-2005, it is stated that it is of no legal effect and it was replied by the plaintiff. It is further stated that immediately upon learning the fact that the defendant was obtaining the registration of drug MIBS through unfair means despite pendency of plaintiffs earlier application dated 26-8-2004 to this effect, the plaintiff wrote a letter to the Secretary Drugs Registration Board, Ministry of Health, Islamabad on 4- 7-2005 of which subsequent reminders were also sent. The plaintiff claims to be prior in time and by virtue of Trade Mark Ordinance, 2000 any use of Trade Mark MIBS by the defendant amounts to direct infringement of the proprietary rights of the plaintiff. Lastly it is urged that all ingredients necessary for grant of temporary injunction exist in the case and the same are in favour of the plaintiff. Muhammad Farooq defendant No.1 has also filed his counter- affidavit denying the case of the plaintiff. He has stated that he is carrying on a lawful business and not involved in any act of infringement of trade mark. Being a wholesaler he deals with medicines and sales the same to retailers. He has stated that plaintiff is not entitled for any relief. I have heard Mr. Abdul Hameed Iqbal learned counsel for the plaintiff, Mr. Syed Amjad Hussain learned counsel for defendant No.2, and defendant No.1 in person. Both the learned counsel have argued on the same lines as is their case as stated in the affidavit and the counter-affidavit as well as rejoinder.
5. Defendant No.1 submitted that he has put up his case in his counter-affidavit, and opposed to the grant of injunction. The main thrust of the arguments of Mr. Abdul Hameed Iqbal is that the plaintiffs have the exclusive right to use the Trade Mark MIBS which has been invented/created by them, despite having not been registered so far. In support of his contention learned counsel has referred to the "Law of Trade Marks and Passing off' by P. Naryanan (Forth Edition) Page 42 to show that if another' trades has made an earlier claim to proprietorship of the mark although not used by him and who has not abandoned that claim then the claim of the applicant is not well founded.
6. He has further referred to page 44 which is reproduced herein after:-- "Use of mark by another subsequent to date of application. An applicant who has filed an application under section 18 claiming to be the proprietor of the trade mark and to have definite and present intention to use the mark has better rights than another who, subsequently without due care adopted and used a similar mark. Subsequent use by another of the same mark cannot militate against or take away the right acquired by the applicant on the date of his application by virtue of section 18 (1). If a subsequent adoption and user by another is taken as a ground for rejection of an earlier application for registration, then section 18(1) which enables a person to apply for registration of a mark proposed to be used by him will be rendered practically nugatory. The right to have a mark registered under section 18(1) by a person devising and proposing to use it can in all cases be defeated by an unscrupulous rival, trader coming to know of the mark proposed to be registered and using the same before the mark is actually registered and putting forward opposition to the application for registration on the ground of his user of the mark. Once an application for registration of a mark is made by a person who has proposed _ to use a mark devised by him, all persons who happen to use that mark thereafter bona fide or not, will only be taking a risk and, therefore, their user cannot stand in the way of the applicant prosecuting his application for registration."
7. Learned counsel has therefore, urged that there is a strong prima facie case as well as balance of convenience in favour of the plaintiff who shall suffer irreparable loss if the interim relief as prayed is not granted. On the other hand, Mr. S. Amjad Hussain learned counsel for the defendant No.2 has argued that application of the defendant No.2 for registration is also pending, however, the fact remains that permission to manufacture and sale the drug under the brand name MIBS granted to the plaintiff has been withdrawn by the Authority and without there being such registration of a drug by the Authority under section 7 of the Drugs Act, 1976, which deals with registration of drugs, it is the Federal Government, which shall cause all drugs to be registered in accordance with such condition and procedure as may be prescribed and for that purpose set up a Registration Board.
8. Section 23 of the Drugs Act, which deals with the prohibition in respect of sale and manufacturing of drugs has very clearly laid down that "no person shall himself or by any other person on his behalf export, import or manufacture for sale or sell any drug which is not registered or is not in accordance with the conditions of registration". Thus, according to Mr. Amjad Hussain the licence to manufacture and registration of drug having been cancelled, the plaintiff has no case at all and as such not only injunction application is liable to be dismissed but plaint is also liable to be rejected.
9. He has further argued that even if trade mark is registered, no drug can be manufactured or sold unless registered under the Drugs Act.
10. Mr,. Abdul Hameed Iqbal in rebuttal has argued that section 2 of Drugs Act, 1976, has made it clear that it is in addition to, and not in derogation to any other law for the time being in force, hence cancellation/withdrawal of registration shall not come in the way of the plaintiff. Learned counsel has, therefore, argued that despite withdrawal of the registration though according to him which is based on mala fides and has been challenged before the competent authority, the plaintiff is entitled for the relief claimed. I have given due consideration to the arguments advanced by the learned counsel for the parties and examined the documents placed on record as well as the relevant provisions of law. Indeed the principles of law relating to registration of trade marks as elucidated by P. Narayanan have force, but the fact remains that the Trade Mark MIBS of the plaintiff has not been registered so far and in the meantime its registration to manufacture and sell or offer for sale any such medicine, has also been withdrawn by the authority under the Drugs Act whose order has been called in question by the plaintiff before the next higher forum and no relief interim or/final has been granted to the plaintiff in appeal so far. It is also not disputed that permission to manufacture the drug in question under the name of Mibs has already been granted to defendant No.2 on 31st January, 2005 much earlier in time and the said registration is still intact, and defendant No.2 has also applied for registration of Trade Mark "Mibs" so also for registration under the copy rights. For what has been discussed above, it appears that at present there is no registration of the Drug permitting the plaintiff to manufacture, and sale the same and plaintiff has been advised by the Deputy Controller of Drugs to change the trade name of his drug as it is similar to the trade name being used by the defendant No.2, who has been granted such permission to manufacture and sale the drug vide permission granted on 31st January, 2005, which is intact so far. Admittedly, under section 23 of the Drugs Act, 1976 no drug can be imported, manufactured or sold by any person himself or through any person in the absence of a valid registration/permission granted under section 7 of the Act. Moreover, the Trade Mark MIBS has not been registered so far, hence there appears to be neither a prima facie case nor balance of convenience in favour of the plaintiff who shall also not suffer any irreparable loss if the injunction is refused. On the contrary, balance of convenience appears to be in favour of defendant No.2, who is manufacturing the said drug for the time being under a valid permission/registration which was granted much prior to that of the plaintiff. Resultantly, this application is dismissed, however, with no order as to costs.