' MS. RUKIISANA AHMED, J.---The plaintiff has filed this suit for infringement, passing off, injunction, damages and rendition of accounts of profits against the defendants with the following prayers:-
(a) For a permanent injunction restraining defendants, their servants, agents, distributors, representatives, dealers and all persons claiming through or under them jointly and severally from infringing the trademark E-4 its label with the same colour scheme, get up, style, logo, shield, etc. As of the plaintiff or in conjunction with any other mark or device or in any other similar mark or in any other colour the same get up, style, design, colour scheme, logo with words E-4, plus or with other device or E-4 with any other label colour scheme, get-up and design by manufacturing, blending, filling, marketing, selling, distributing, offering for sale, advertising or otherwise using on their product trademark E-4 with the same or other colour scheme, design, get-up;
(b) For a permanent injunction restraining defendants its servants, agents, distributors, representatives, dealers and all persons claiming through or under them jointly and severally from passing off or attempting to pass off their goods under the said trademark E-4 as those of the plaintiff by manufacturing, filling, selling, offering for sale, advertising or otherwise dealing in their product under the label with the same colour scheme, getup, style, logo, shield, etc. As of the plaintiff or in conjunction with any other mark or device or in any other similar mark or in any other colour the same getup, style, design, colour scheme, with words E-4, plus or with other device or features.
(c) For an account of all profits made by defendants by using the said trademark 'E-4' and label on their products and for payment by the defendants to the plaintiff of all such profits.
(d) An order to direct defendants to deliver up on oath all labels, cans, advertising materials, printing blocks, dies, films and any other material, which bears trademark E4 and label.
(e) For payment of Rs,100 Million as damages by defendants to the plaintiff.
(f) For the costs of the suit.
(g) And for such and further and other reliefs this Honourable Court deem just and equitable.
2. The facts out of which the above suit has arisen are that the plaintiff is manufacturer of motor oil and is the registered proprietor of trademark `E-4' under Registration 83067 in Class-4 since, 1984 and has filed the photocopies of the registration and its renewal. The plaintiff further pleaded that it is also the proprietor of trademark of another label under No,129393 in Class 4. The plaintiff filed Miscellaneous Appeal against the Registrar for granting conditional registration to the plaintiff. The plaintiff further pleaded that it is also proprietor of registered trademark of alphabet `P' in circle written and represented in a special manner. The plaintiff is selling oil regularly in Pakistan since, 1983 under the trademark `E-4' and due to high quality the goods has acquired great popularity, reputation and goodwill. The label 'E-4' consists of shield of house mark 'Petlubes' with logo 'P' therein and other matters written in shield with blue and red colours. Beneath the logo 'P"Symbol of Quality' is written. The label consists of words 'Extra Motor Oil 30/40 with word PLUS represented in a special manner, device of motor cycle and other descriptive and catchy matters. The plaintiffs said product under the said trademark is identified by "E-4" and distinctive label, design, colour scheme, getup, lay out and essential features. The villagers and illiterate customers identify and purchase the plaintiffs product under the said trademark.
3. The plaintiff claimed that selling oil by the defendant No,1 under the same trademark `E-4', label design, logo, shield, getup, colour scheme, style, etc. Constitutes infringement of plaintiffs trademark and passing off and the same is creating deception and confusion amongst the purchaser. Apart from above the plaintiff also pleaded that the defendant No,1 is not authorized to market oil without permission of Ministry of Petroleum and that the plaintiff has suffered damage to its reputation and goodwill due to wrongful acts of the defendants.
4. Firstly. The summon were served upon the defendants in the year, 2005 but they failed to file their written statements. The defendant No,1 was debarred from filing written statement on 13-5-2005 the defendant No,2 was declared ex parte on 11-4-2005 and the defendants Nos.3 and 4 were debarred on 24-12-2004. Thereafter since no written statement was filed by any the defendants, the matter was fixed before the Court for final disposal. The Court after hearing learned counsel for the plaintiff dismissed the suit mainly in view of the disclaimer clause vide judgment and decree dated 17-1-2006 and 25-2-2006. The same was challenged in High Court Appeal No,81 of 2006 where it was brought to the notice of learned Division Bench that disclaimer clause was deleted by order dated 24-11-2005 in M.A. No,303 of 2003, before passing of the judgment and decree, and this fact was not brought to the notice of the Court at the time of hearing of the suit. Hence the case was remanded to this Court for fresh proceedings.
5. On receipt of the case, efforts to effect service upon the defendants were again made and intimation notices were issued to the defendants whereupon defendant No,3 was served on 5-5- 2008 but no written statement was filed. The defendants Nos.1, 2 and 4 could not be served through ordinary mode of service, hence publication was effected in Daily Jang dated 23-2-2009 but no one turned up hence service was held good and they were declared ex parte.
6. I have heard learned counsel for the plaintiff and with his assistance perused the material available on record.
7. Learned counsel for the plaintiff contended that the plaintiff is the proprietor of registered mark 'E-4' and the defendant is not entitled to use the same and by using the same the defendants are infringing the trademark and are committing passing off. He further contended that the defendant No,1 deliberately copied and imitated trademark 'E-4' and its label and design, which lead to deception and confusion to the purchasers. He further contended that since the defendants have not filed any written statement and have not controverted the evidence produced by the plaintiff the suit may be decreed.
8. I have considered the arguments of learned counsel for the plaintiff and have gone through the record. The plaint in the suit is verified on oath. The plaintiff has also filed his affidavit supported with certain documents in support of his claim. On the other hand the defendants have not come forwarded to contest the claim of the plaintiff though the attempt to serve them was made twice first in the year, 2005 and thereafter in the year, 2009 when the case was remanded in High Court Appeal but no one turned up to contest the suit. Thus, the contention of the plaintiff has gone unrebutted and unchallenged.
9. In view of the above, I have no option but to decree the suit. However, since no material has been placed on record as to the damages suffered by the plaintiff, the suit is decreed only to the extent of prayer clauses 'a', 'b' and 'c' and costs incurred in the filing of the suit and process before this Court in the sum of Rs,50,000.