' SYED QALB-I-HASSAN, J.---Brief facts relevant for disposal of the instant regular first appeal are that the appellant/plaintiff filed a suit for permanent injunction against the respondent/defendant on the ground of infringement of trade mark and passing of account of profit. It is the case of the plaintiff that originally its name was "Hamdard National Foundation Pakistan" and is also known as Hamdard Foundation Pakistan and besides renowned manufacturer of syrups, Unani medicines and other goods also publishes magazines, journals under the title/name of "Hamdard-e-Sehat" and "Hamdard Naunehal". The products of the plaintiff under different trade marks circulated throughout the world including Pakistan and have acquired worldwide reputation and goodwill due to high standard and quality. It is averred that the plaintiff first adopted the trade mark in the year 1949 and the goods of various descriptions are being sold continuously under the trade mark "Hamdard" since 1949. It is further added that in the year 1932 late Hakim Muhammad Saeed started publishing a magazine known as "Hamdard-e-Sehat" from Dehli and after partition of subcontinent, from Karachi and thereafter another magazine known as "Hamdard Naunehal" was started in the year 1953. It is submitted that the respondent with mala fide intention got an advertisement published in daily Nawa-e-Waqt for publication of daily newspaper under the name/title of "Roznama Hamdard" w,e,f, 10-6-2005. The grievance of the plaintiff in the suit was that the defendant has deliberately and with mala fide intention copied/imitated the registered trade mark of the plaintiff to earn illegal profit out of the reputation and goodwill acquired by the plaintiff after continuous hardwork and struggle.
2. The suit was contested by the defendant with the contentions that the plaintiff is engaged in the business of manufacturing and marketing of syrups, Unani medicines and other goods under aims and objects of the society and not with conformity of provisions of press/newspaper, therefore, there is no relevancy of plaintiffs business with the newspaper of the defendant. It is further averred that the defendant has got a declaration for a newspaper with the name of "Roznama Hamdard" under Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 and is engaged in entirely different business and there is nothing which create confusion to public at large.
3. The learned trial. Court framed necessary issues from the pleadings of the parties and asked them to produce oral as well as documentary evidence in support of their respective contentions.
The learned trial Court after hearing the arguments of the learned counsel for the parties, dismissed the suit vide judgment and decree dated 18-3-2008. The appellant has now challenged the validity and propriety of judgment of the learned trial Court through the instant R.F.A.
3.A Learned counsel for the appellant contended that the impugned judgment and decree is passed in violation of the provisions of the Trade Marks Ordinance, 2001 and the learned lower Court has failed to appreciate that the respondent has violated/infringed the trade mark of the appellant by publishing "Roznama Hamdard" under the garb of Press, Newspaper, News Agencies and Books Registration Ordinance, 2002 without taking into account that the said Ordinance, does not permit the respondent to violate and infringe the registered trade mark of the appellant therefore, the findings of the learned trial Court are totally against the law laid down by the Honourable Supreme Court. Learned counsel for the appellant to support his contentions has relied upon Messrs Dewan Sugar Mills (Pvt.) Ltd. v. M.B. Abbasi and others 2007 CLD 1610; Seven-up Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 313 and Alpha Sewing Machine v. Registrar of Trade Marks PLD 1990 SC 1074.
4. Learned counsel for the respondent vehemently opposed the contentions raised by the learned counsel for the appellant and contended that the respondent is printing and publishing its newspaper "Daily Hamdard" according to the declaration issued by the Government and has no relevancy with the appellant's business or trade mark which is a manufacturing institution of syrups, Unani medicines and other consumers' goods. Learned counsel to support his contentions has relied upon Sunkit Growers Inc. v. Messrs Karachi Aerosol Co. Ltd. And another PLD 1987 Karachi 119 and Montres Rolex S.A. Geneva, Switzerland v. Assistant Registrar of Trade marks PLD 1987 Karachi 199.
5. Arguments heard and record perused.
6. That the trade mark "Hamdard-e-Sehat" under Registration No, 19336 was issued to the appellant on 29-11-1952 and trade mark "Hamdard" under Registration No,26100 was issued on 21- 8-1956 under Trade Marks Ordinance, 2001 Rules 84 and monthly magazine "Hamdard-eSehat" and "Hamdard Naunehal" are being continuously published by the appellant.
7. The respondent has got declaration on 23-6-2005 to publish a daily newspaper under the name of "Hamdard" under Press, Newspapers, News Agencies and Books Registration Ordinance, 2002 and started publishing Daily Newspaper in the name of "Daily Hamdard".
8. Now the respondent after getting declaration under Press, Newspapers, News Agencies and Book Registration Ordinance, 2002 has started publishing a newspaper the "Daily Hamdard" on the ground that publishing of a newspaper is distinct business and law does not restrict from using such name irrespective of the registered trade mark (Hamdard) of the appellant. Section 40(4) of Trade Marks Ordinance, 2001 provides that a person shall infringe a registered trade mark if he uses in course of trade a mark in relation to goods or services which are not similar to those for which the trade mark A is registered when deceptively similar to trade mark use of which lead confusion or deception. The respondent is although publishing daily newspaper with the name "Daily Hamdard" and the appellant is publishing monthly magazines under their trade mark of "Hamdard-e-Sehat" and "Hamdard Naunehal"" and although both the publications are differently classified but have often same sale points and outlet points and readers are largely of the same category, therefore, element of deception and confusion cannot be ignored. The Honourable Supreme Court in case of Alpha Sewing Machine v. Registrar of Trade marks PLD 1990 SC 1074 has held that if there is an element of deception or confusion then any such element in respect of nature of business of the registered trade mark cannot be used by the other party. In similar circumstances the Honourable Supreme Court in Seven-up Company v. Kohinoor Thread Ball Factory and 3 others PLD 1990 SC 313 has observed as follows:-- "As regards "Pan Masala" (Powdered Supari) and sweet and scented Supari, the fact that the Company "7-Up" is a multinational of international repute in the market for beverages and for that reason not likely to engage itself in trading in such an indigenous product may academically be sound for a marketing analyst but really of no or very little concern to the class of consumers served by these products. Their sale points and outlet points are quite often the same. The consumers served are largely of the same category. Both the products though classified differently for the purpose of trade mark fall, from consumers' point of view, in the same category of light refreshment or "Pep" preparations. Their features do make out a case of there being likelihood of confusion or deception with regard to their source. The applicants for this registration mark had a wide and open field to choose from. They decided upon the trade name of another which also happens to be name of the company which has heavily invested in that trade name and goodwill appurtenant to it. With that , real likelihood of deception and confusion it was clearly a case where registration should have been refused".
9. In view of what has been discussed above, the learned lower Court has not appreciated the law on the subject and facts of the case properly. Therefore, the impugned judgment is set aside, appeal is accepted and the suit of the appellant is decreed to the extent that the respondent is restrained from, infringing the appellant's registered trade mark "Hamdard" by using the trade mark word "Hamdard" in his publication. There is no order as to costs.