C.M.A. No.7175 of 2004.
MRS. QAISER IQBAL, J.---This is an application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. Filed by the plaintiffs against the defendants seeking order to the effect that they be restrained from passing off and/or attempting to infringe the products, services or business under the Trade Mark and Trade Name "Master" or any similar variation thereof and/or deceptively identical and/or having some resemblance to the trade mark and trade name of the plaintiffs.
2. The facts precisely leading to the case are that the plaintiffs are reckoned Master Group, carrying on business under the Foundation Stone of Master International Pvt, Ltd.; engaged in diversified business such as textile, automotive parts, spring mattresses and general trading comprising of following companies:-- Master Enterprises (Pvt.) Limited 1963 Duraform (Pvt.) Limited1918 Master Chemical (Pvt.) Limited 1984 Proton Engineering (Pvt.) Limited 1988 Master Polymer Industries Limited 1889 Master Textile Limited 1992 Master Auto Engineering (Pvt.) Limited 1996 Master Foam (Pvt.) Limited 1889 The plaintiff had competent business and endeavoured to optimize its expertise in diversified fields.
The plaintiffs recommended products includes Greige Fabrics, Household Textiles and Apparel Wear to cater the needs of its customers. The plaintiffs Master Group using the Trade Mark "Master and logo M" became due exclusively is used for the marketing, as classified in para.7 of the plaint have been registered under the Trade Marks Act, 1940. The plaintiffs had also set up a Master Textile Mills Limited carrying on business under the exclusive Trade Mark Master or Master Textile with variation or colourable imitation as recognized by the traders, customers public at large to have its origin from the plaintiffs. In the . Month of January, 2004, it came to the knowledge of the plaintiffs through its foreign client that defendants Nos.1, 4 and 5 in active connivance and collusion of defendants Nos.2 and 3 malafidely to reap profits out of the goodwill of the plaintiffs had commenced their business of manufacturing and exporting the low quality of products under the name and style of Master Fabrics in exactly identical and deceptively similar manner to the trade mark, trade name and trading style of the plaintiffs. The plaintiffs had served the defendant with a letter dated 15-1-2004 and had objected upon the adoption and use of its trading style Master calling upon to them to discontinue the said- trade mark but of no avail: The defendants in an International Exhibition called Heimtextil 2005 taking undue advantage in the business of the plaintiffs in order to reap profits of goods of plaintiffs' trade mark and trading name participated in the exhibition under the name and style of Master Fabrics thereby dissatisfied and confused the customers, traders, sellers, buyers and others engaged in the business within and outside Pakistan.
3. The defendants in the counter affidavit specifically denied that the name of the Master Fabrics is identical and deceptively similar to the trade mark, trade name and trading style of the plaintiffs Master Textile, the defendants are not using the trade name similar or close to the name of the plaintiffs in course of trade or through Internet web. It is specifically denied that there exists no standard for ascertaining the actual damage caused or likely to be caused to the plaintiffs on account of act and omission committed by the defendants by invasion of the trade mark of the plaintiffs. The plaintiffs came to know about the business of the defendants in the month of January, 2004 'while the suit was filed in the month of September, 2004, which explicitly shows that there was no urgency on the part of the plaintiffs to seek a restraint order against the defendants.
4. Learned counsel for the plaintiffs has contended that the use of word "Master" by the defendants in course of their business is an act of infringement of plaintiffs proprietary rights in terms of section 39 and the trade name as Master per section 92 of the Trade Marks Ordinance, 2001. It ls urged that the word "Master" graphically represented is capable to distinguish goods or, services offered for marketing by the plaintiffs whereas the term "Mark". As defined in section 2(xxiv) includes the name, therefore, under the law, trade mark and trade names are liable to be protected. It is further contended that admittedly the plaintiffs are using the trade marks/trade name "Master" since 1963 whereas the defendants as contained in para.18 .Of the written statement adopted the same as Master Fabrics in the year 2003. In terms of section 92 of the Ordinance, 2001, which provides that a trade name shall be protected without the obligation of filing or registration under this Ordinance whether it forms part of a trade mark or not, such rights of the plaintiffs are liable to be protected. It is next urged that the plaintiffs are enjoying the exclusive rights of proprietary and the defendants are guilty of infringement by using the registered trade mark of the plaintiffs without consent, which has dissatisfied the general customers, locally as well as internationally and had caused loss to the commercial goodwill as well as to the trade mark and trade name of the plaintiffs. In support of the above contention, reliance is placed on PLD 1987 SC 1090, PLD 1991 SC 921, 2000 YLR 1376, PLD 2006 Kar. 192, 2001 SCMR 967, PLD 2001 SC 14 and 2004 CLD 171.
5. The learned counsel for the defendants has resisted the application on the grounds that the word "Master" is originated to different products marketed in Pakistan, the defendants have been using the trade name of "Master Fabrics" exclusively locally and internationally, the sale of the plaintiffs products in Pakistan would not likely to be affected by the competition on the part of the defendants. It is urged that the question of confusion and deception can only be decided on the basis of the evidence to be led at trial. It is next urged that the trade mark, the subject-matter of the present suit, was not registered. Therefore, the plaintiff cannot claim any infringement or the trade mark at the best the plaintiffs claim passing off action in terms of section 20(2) of the Trade Mark Act, 1940.
In support of the above contentions, reliance is placed on the case of Formica Corporation v.
Pakistan Formica Ltd. 1989 SCMR 361, Abdul Wasim v. Messrs -Haiko through Sole Proprietor 2002 CLD 1623, OIL and Gas Development Corporation v. Lt. Colonel Shujjauddin Ahmed PLD 1970 Karachi 332 and Bayer A.G. And another v. Master. International (Pvt.) Ltd. 2003 CLD 794.
It is abundantly clear that the registration of the trade . Mark, which is identical or nearly resembles each other in respect of the same kind of goods or description of goods are permissible to be registered favouring different proprietors. When a particular trade mark is common to the trade used by more than one person, it becomes publici juris and all traders in the field can claim their right in the said trade mark. The deception and confusion should be such, which effect a wary person. The plaintiff claims exclusive right to use trade mark by virtue of registration with. The Trade Mark Registry since 1963, while the Master Textile Limited was incorporated in the year 1992. The defendant claimed to commence their business from the year 1980 registered in the year 2002. It is also a fact that plaintiffs mark Master Textile is not registered, therefore, the plaintiff could only claim a right of passing off action, which is also subservient to the right and exceptions provided under section 10(2) and sections 22, 25 and 26 of the Trade Mark Act, 1940.
I have carefully considered the Trade Mark "Master" "Master Textile", with the trade mark of the defendant Nos.1, 4 and 5 "Master Fabrics". There appears to be no similarity, variation or colourable imitations between the trade marks of the plaintiff and defendants nor there is any possibility to believe that the public at large would be confused or deceived as the plaintiff logo (M) and defendant's logo (mf) is quite different in their shape, colour scheme and get up, thus, there is no similarity nor deception or identical trading style. The Trade Mark "Master" has become common to trade, thus ale public property in local and universal use. No evidence has been brought by the plaintiff on record that the defendants has deceived the public by trading their goods with the trade marks of the plaintiff or in any way passed their goods as goods of the plaintiff. I am of the opinion that the trading style of the defendants as Master Fabric did not deceive the customers as the word master has become common to the trade. The claim of D the plaintiff as prior and exclusive user of the trade mark/trade name is not in consonance with the rule laid down in this regard. The only point requiring consideration is Whether general public would be deceived or confused by the user of the trading style Master. Fabrics. In the instant case the defendants have been carrying on business since 1980 registered with Registrar of firms in the year, 2002. It appears that the plaintiff had been carrying on various style of trading under the Trade Mark "Master", in the year 1994 the business of Textile under name and style "Master Fabrics" was started. It is admitted position that both the parties have been dealing locally country and worldwide in the same style of business. There is no evidence on record that the customers of the plaintiff were misled or confused by the trading name of the defendants. The plaintiffs have been carrying business since 1992, yet they had proceeded to file suit against the defendant in the year 2004. No explanation has been given for the delay in filing the suit. On the basis of the record, I am of the view that at this stage the use of the trade name of the defendant did not cause any confusion and deception as the plaintiffs have Been carrying out business. Even after alleged use of their mark in the trade name by the defendants. No inconvenience or damage has been caused to the plaintiff during the period commencing from 1992 till 2004. In case injunction is granted plaintiffs have failed to establish prima facie, case, the suit of the plaintiff is not decided in their favour, the defendants who claimed to have set up their business would be adversely affected, thus, more inconvenience and irreparable loss shall be caused to the defendants. On the basis of the above analogy, I am of the view that no case of injunction is made out by the plaintiffs, C.M.A. No.7175 of 2004 is accordingly dismissed. The observation expressed in the above order are tentative in nature and shall not effect the merits 'of the case on trial.