1. C.M.A. No,6118 OF 2005 ' MUNIB AHMAD KHAN, J.--- Through this application the plaintiff has prayed that the defendant may be restrained from using the trade mark Asiahero during pendency of suit as the plaintiff is owner and using trade mark Hero for which he has made application in different classes for registration before Registrar, Trade Mark, which are pending. The learned counsel for the plaintiff has argued that the plaintiff has adopted its own name for its trade mark Hero and has been using it since 1996 and with the association of its Chinese counterpart is carrying out the business since 1997 and is producing Hero Motorcycle with different specification such as 70-CC, 4-stroke, CDI system etc. And that towards use of his trade mark Asiahero it has invested huge amount towards concept, designing and advertising and has earned sufficient goodwill, while registration of its trade mark application in different classes is under process since 1999. He further argued that the plaintiff noticed in July, 2005 that the defendant has started using trade mark Asiahero and has introduced Motorcycle with that name and since the trade name Asiahero resemble with the trade mark Hero of the plaintiff, therefore, sufferance on the part of the plaintiff is eminent and until defendant is restrained from such activities, the losses to the plaintiff will be accumulated. Learned counsel has further argued that normal buyer cannot judge small distinction between the trade mark Asiahero of the defendant and trade mark Hero of the plaintiff and that the defendant has applied for Asiahero in 2006 which shows that it has come much after the plaintiff in the trade.
2. Learned counsel has also pointed out section 92 of the Trade Marks Ordinance to show that protection of the trade mark is provided. He has also referred section 14 of the Trade Marks Act and further pointed out that plaintiff use established from its sale it has made during past years which is being reflected in para 11 of the plaint.
3. ' On the other hand Mr. Munawar Ghani, learned counsel for the defendant has argued that it is not a case of infringement of trade mark but may be of passing of as the trade mark Hero of the plaintiff has not been registered so far while action can be taken by the registered owner in terms of section 39 of the Trade Marks Ordinance. Apart from the above, on merit, the learned counsel has vehemently disputed exclusive use of trade mark Hero as no one can be given exclusive right as it is a general adjective and even if the Hero is considered as a trade mark of the plaintiff then Asiahero is quite different. He has further submitted that price of both the Motorcycles has a difference of about Rs,3000 as Asiahero is being sold for about Rs,24,000 while Hero is being sold for Rs,27,000. He has further referred counter affidavit of the defendant and submitted that there are other users who are manufacturing Motorcycles with the trade marks of Kinghero, Superhero and Pakhero, while the Pakhero is being manufactured by Pak Hero Industries Limited, who is producing about 25000 units per year, while the plaintiff is manufacturing 15000 units only and that the trade mark Hero originally belongs to Honda company of Japan, but has been used by different manufacturers in same nomenclature or with some addition. He argued that due to wide difference between the trade names there can be no confusion or deception when the price is also different, while the way and style in which Hero has been written with small wings with name within rectangle while no such wing etc. Has been used with the trade mark Asiahero.
4. ' He further submitted that although he has applied for registration and same has been advertised in December, 2006 by the Registrar of Trade Marks, but it has been specified in the advertisement that defendant will have no right to the exclusive use of word Asia or Hero, which shows that the common word Hero and Asia cannot be owned by anyone exclusively. Learned counsel has relied upon several authorities to show that even minor difference between two trade marks has been held to be justified, in this respect he has cited PLD 1970 SC 460 where numerals 1947 and 1937 word found to be different. Another authority 1992 CLC 1728 cited by him is in respect to cigarette Craven-A and Carvan and both words were found distinctive, other authority 1993 CLC 2201 (Karachi) is in respect to trade mark Grindwell and Grinnell and both words found distinctive.
5. Another authority 1994 M LD 607 is cited to show that trade mark Tang has been found distinctive with Tango and likewise 1987 M LD 2864 is cited to show that Texapol was found different from Texapon. Learned counsel has also cited case of Coca Cola vs. Pepsi Cola and 1960 RPC 229, 30 RPC 709 and copies of orders in Suit No,1427 of 2005 and in Suit No,1161 of 2004 and has argued that in the cited judgments although there was some resemblance phonetically and in size of the words vis-a-vis. Pattern, but even then they were found distinctive and their use was not prohibited.
6. Whereas in the instant case both the trade marks are very much different. Contrary to above Mr. Hakim Chohan, learned counsel for the plaintiff has relied upon PLD 2001 SC page 14 and argued that cardinal principle of law is that similar and identical product should not be used under confusing trade mark. After hearing the learned counsel, the documents specially the format style in which the plaintiff trade name Hero is being applied for registration has been examined. At page 87, as Annexure C/2 is the advertisement of plaintiff Hero carried out in the trade mark general. The trade marks Hero has been mentioned within a rectangle around it and on both the sides wings have been shown, beneath it Hero in small dimension is again repeated. On the other hand the trade mark Asiahero applied for registration by the defendant is consisted of two separate words Asia and Hero as there is a some space between the two words and beneath them word Motorcycle is written. Comparison of both these trade marks of Hero and Asiahero shows that they are quite distinctive to each other as the Hero is four letter word while Asiahero is eight letter word.
7. They are also distinctive in their appearance as they have been used in different style. It has also come to record that the defendant had not been given exclusive right to word Hero or to Asia and if same criteria is applied to the plaintiff then he will also have no exclusive right to the word Hero as it is an adjective and is frequently been used in so many varieties and respects. It has also come on record through arguments that there is a difference of Rs,3000 A in the price of both the Motorcycles, therefore, the contention of the plaintiff that the product of defendant with trade mark Asiahero are causing deception and in that way defendant has infringed its trade mark is not conceivable. It is to be pointed out that now-a-days when the world is in advance stage of mechanization and advertisement and competitors are emerging day by day with similar goods.
8. The user/purchasers have also noted this phenomenon and have become selective and choosy, specially when large amount is spent for the goods.
9. ' Keeping in view that it is not the plaintiff who is being using trade mark with additional word Hero, but others are also using the same as Asiahero, Kinghero etc. And that the plaintiff have invested certain amount, while the intention of the Registrar of Trade Marks is not to give the word Asia and Hero as exclusive use to any applicant. The prima facie case and balance of convenience will be in favour of the defendant and not the plaintiff as by granting of injunction, defendant will suffer irreparable loss, while the plaintiff has already been in A the field with other competitors, therefore, in the circumstances, injunction as prayed for by the plaintiff cannot be granted, hence application C.M.A. 6118 of 2005 is dismissed.