1. ' MRS. YASMIN ABBASEY, J.---This miscellaneous appeal has been preferred against the order passed by Registrar of Trade Marks at Karachi in Opposition No,70 of 1988, whereby the application of appellant for registration of trade mark "Fiesta" was rejected.
2. ' Facts leading to this case are that according to appellant before adopting the trade mark "Fiesta" for their goods falling in Class-3 of Schedule IV of Revised Trade Marks Rules a search application was moved by them on 12-8-1985 to ascertain that whether any identical or similar trade mark in the name of any other person or company has been registered or any application for registration of the similar trade mark is pending before the Trade Mark Registrar. On 1.7-9-1985 respondent No,1 informed that no trade mark application in the name of "Fiesta" for the similar and identical goods as of appellant has been filed or registered. On receipt of clear search report on 28-10-1985 appellant moved an application for registration of trade mark "Fiesta" in Class-3 in respect of "bleaching preparations and other substances for laundry use, cleaning, polishing, scouring, abrasive preparations, soaps, perfumery, essential oils., cosmetics, hair lotions, shampoo, tooth powder, tooth paste and detergents." Application of the appellant was accepted and was advertised in Trade Mark Journal No,442 of November, 1987.
3. ' After advertisement a notice of objection was filed by respondent No,2 Messrs C.P.C. International Inc. Under Opposition No,70 of 1985. Matter was heard. In the meantime on 26-3-1990 appellant moved an application for change of name of their company from National Detergents Limited to Colgate Palmolive (Pakistan) Limited. During pendency of that application by letter dated 24-9- 2003 it was informed by respondent No,1 that Opposition No,70 of 1998 had been allowed, resultantly application for registration of trade mark was rejected. An application for review was filed but till the date of filing of this appeal it was not decided.
4. ' Notice of this appeal was issued to the respondents but in spite of service none appeared on their behalf. Mr. Salim Ghulam Hussain, Advocate for the appellant was heard.
5. ' It is argued by learned counsel for the appellant that though trade mark "Fiesta" applied by both the parties may be the same but the goods manufactured by them are absolutely different to each other. According to appellant they had applied for registration of the trade mark for bleaching preparations and other substances for laundry use, cleaning, polishing, scouring, abrasive preparations, soaps, perfumery, essential oils, cosmetics, hair lotions, shampoo, tooth powder, tooth paste and detergents, whereas admittedly respondent No,2 as per the contents of notice of their objections are manufacturing and trading the goods falling under Classes Nos.31 to 32, including food product, agricultural, horticultural and forestry product and grains, which are absolutely different to the goods manufactured by the appellant. Thus there is no possibility of any confusion or deception in the mind of end consumer. To support his arguments, learned counsel for appellant has referred case of Sunkist Growers Inc. v. Messrs Karachi Aerosol Co. Ltd. And another PLD 1987 Karachi 119, wherein the facts of the case almost appears to be similar with the present case Trade Mark "Sunkist" was applied by both the parties of matter and it was observed therein that:-- "In the present case surgical goods, plasters and disinfectants are completely different from fresh fruit and fruit products. The goods produced by each one of them are different in nature and use. It is difficult to believe that the surgical goods, plasters and disinfectants be attributed as to origin to the appellant's goods. In the circumstances, there is no. Possibility of deception or confusion being caused to the public."
6. Section 8 of Trade Mark Act, 1940, specify the reason when registration of certain matters is prohibited, clause (a) A would be relevant for the purpose of disposal of this case, which reads as under: "8. Prohibition of registration of certain matters: No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would:--
(a) by reason of its being likely to deceive or to cause confusion or otherwise be disentitled to protection in a Court of Justice or
(b) . .
7. (c)
8. With the purpose of enactment of the provision if goods manufactured by both parties are examined apparently they are different to each other. The goods manufactured by the appellant are used for laundry purpose, whereas the goods B supplied by respondent No,2 mostly are edible items. Thus there is no apprehension that I will create any confusion or deception in the mind of general public or purchasers. In case of Montres Roles v. Assistant Registrar Trade Marks and another PLD 1993 Karachi 442, purpose sought to be explained by legislature has been elaborated that:-- "Section 8(a) of the Act is designed for the protection of the public against deception or confusion and must, therefore, be given a wide scope and should not be limited to any kind of confusion such as arising by reason of any trade connection between the competing goods. Once it is established on the evidence that deception or confusion is probable, the Registrar is bound to prohibit registration of the proposed trade mark in the public interest. Now, it is not the case of the appellants that there is any trade connection between road vehicle springs and the sophisticated horological instruments and,part thereof jewellery of the appellants. The goods are so different in their nature, use of purchasers. Therefore, ordinarily it would be difficult to infer the probability of the public being deceived into purchasing vehicle springs in the belief that they are manufactured by the appellants.
9. So is the present case, the goods as discussed above are absolutely of different description and classes and it is hard to believe that it will create an impression in the mind of general D public that the goods produce by each of the party have some connection to each other.
10. ' To protect the public from any confusion or deception due, to name of similar nature of product manufactured and E supplied in the matter a wide scope has been given under this section.
11. ' Section 10 of Trade Marks Act, 1940 in addition to section 8 of Trade marks Act lays down a rule for prohibiting the registration of identical and similar trade mark, much emphasis has been laid on non-similarity of goods in different classes, as the very purpose of registration of trade mark is to F protect public at large from any confusion to enjoy the product of their own choice and for this very purpose the term "same goods" or "description of goods" have been repeated in section 10 of Trade Marks Act for such products or goods.
12. (Seven-Up) Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 313, it is observed that:-- A trade mark at common law is acquired not solely through origination of the mark but through its use in trade."
13. ' The object of giving a particular name to goods is make known to general public through picture, label, words that the said goods are being manufactured by that particular company. Thus a symbol is given to a product with its H description manufactured by a particular company. The term "trade mark" as used in the Act means a trade mark used or proposed to be used in relation to goods for the purpose of indicating or so as to indicate a connection in the course of trade between the goods and some persons having the right, either as proprietor or as registered user, to use the mark whether with or without any indication of the identify of that person. Thus if a particular name is symbolized for a particular goods to promote the interest with the benefits of its use by their consumers, can create a confusion and effect their H business in a market with the similar trade mark given to another company for the similar goods, but in case of different nature of goods in different classes no such possibility can occur, as it is expected from the general purchasers to differentiate between the nature of goods placed under the `mark' for different use.
14. ' The next point urged by learned counsel for the appellant is that no judicial mind has been applied by Registrar Trade Mark, while disposing of the objection and just after placing the arguments advanced by learned counsel for the parties and case-law produced by them, he had disposed of the matter with one line judgment that: "After going through the record and listening to the arguments advanced by both the parties, the following order is hereby passed:
(i) Opposition No,70/88 is allowed.
(ii) Applicant's Application No,82036 is refused under section 10(i) and 8 (a) of Trade Mark Act, 1940.
(iii) There will be no order as to costs.
(iv) This order shall take effect after the expiry of appeal period."
15. Without reasoning rejection of application of applicant for registration of the trade mark or allowing the Opposition No,70 of 1988 is against the principles of natural justice. Section 24-A of General Clauses Act is very much clear on the point that every order passed must based on reasoning. It is incumbent upon judicial officer that he should look into the evidence and material available with him and give its reasoning I to allow or discard the evidence available on the record with his final conclusion. If the order is lacking with these requirements it cannot be termed to be a judicial verdict and will be deemed to be an administrative order incapable to settle controversy judicially between the parties.
16. ' For the foregoing reasons appeal of the appellant is allowed and the matter is remanded back to the Registrar for re-examination of the case in the light of the goods manufactured by both the parties in different classes and its future effect as to the confusion and deception in the mind of any consumer in case of identical trade marks given to different commodities under different classes.