1. ' This appeal calls in question the order dated 29th July, 1979 of learned IIIrd Additional District Judge, Sukkur on application under Order XXXIX, rules 1 and 2, C.P.C. Whereby interim injunction has been granted in favour of plaintiffs in the suit for perpetual injunction to restrain infringement of trade mark and passing off and for account of profits and/or damages and other reliefs filed under sections 20 (2) and 21 of the Trade Marks Act, 1940.
2. ' Briefly stated the facts are that respondents have filed suit as stated above and alongwith it an application under Order XXXIX, rules 1 and 2, C.P.C. Was filed on which notice was directed to the other party i,e, appellants/defendants and after hearing the parties interim injunction has been granted. The case of the plaintiffs in the suit is that they are a well-known firm of manufacturers and merchants of all kinds of "threads" and have been using trade mark "EVERREADY" and numerals "999" with design, lay-out, get up and colour scheme as shown in the specimen label at Annex. "A" of this file, which is registered under No, 64794 since 28th October, 1976. Defendants in the suit applied for registration of a trade mark comprising "EVERLIFE" and numerals "990" under No, 64565 and that application was advertised in Trade Marks Journal No, 336 of 1st January 1979. The plaintiffs in the suit are opposing registration of this trade mark applied for by the defendants in the suit. It is further stated in the plaint that although the defendants in the suit have applied for registration of trade marks comprising "EVERLIFE" and numerals "990" in a different form but of late they have been using the said trade mark which is very identical with and confusingly and deceptively similar to the trade mark of plaintiffs in the suit as shown in Annex "A" at page 35 of the file of this appeal. The label of the defendants in the suit is shown as Annex marked "B" at page 43 of the file of this appeal. It is further stated in the plaint that both these trade marks are used simultaneously with respect to threads and in the result the unwary public, dealers and traders are confused as to the source of origin of these goods.
3. ' In the written statement the case of the defendants in the suit is that allegation of 'Similarity and resultant confusion is denied on the ground, Inter alia that there can be no question of deception on the part of the customers in identifying "999" from "990" as both are distinctly identifiable and are different from each other. It is further the case of defendants in the suit that numerals "990" exclusively belongs to them. The trial Court after he the learned Advocates for both the parties and making references to cuetaw for and against, came to rely upon the case of. Abdul Jabbar and another v. Ahmed Jan (1) and granted interim injunction on the ground that in the instant case number zero and the word LIFE in the trade mark label of defendants in the suit are not the only dominant features but also the get up, colour, shade and phrases used in Urdu and Sindhi as well as monogram, which are similar to the Trade Mark of plaintiffs in the suit, providing close resemblance between two which makes likely deception and confusion in the mind of unwary purchasers.
4. ' I have heard at length Mr. Marcof Ali Khan, Advocate for appellants and Syed shoukat Ali, Advocate for respondents. So -far the question, whether respondents/plaintiffs have made out a strong prima facie case to be entitled to the grant of temporary injunction under Order XXXIX, rules 1 and 2, C.P.C. Is concerned. Apart from what is stated in the plaint as stated above, the perusal of record shows that Trade Mark "EVERREADY 999" was registered under No, 64794 since 28th October, 1976 to which is evident from photo copy of certificate of registration, photo copy of a sheet from trade marks Journal No, 335 dated 1st December, 1978 containing advertisement of Trade Mark No, 64794 and a box-cover with the same label marked as A-1, A-2 and A-3 on the file of appeal before me. It is further stated in the counter affidavit of Mohammad Ashfaq of respondent firm that this Trade Mark "EVERREADY 999" has been in use of respondents since 1974. On the other hand the case of the appellants/defendants in the written statement and counter-affidavit of Mohd Fazil before the trial Court is that their trade mark numbered "990" exclusively belongs to them and is different front numerals "999's {{FOOT NOTE}}
(1) PLD 1973 Kar. 289 {{FOOT NOTE}} as such no-confusion is caused in the mind of unwary customers. Mohd. Ashfaq in his counter- affidavit in appeal has stated that Application No, 64565 of appellants for registration of Trade Mark "EVERLIFE 990" is opposed by their firm on the ground that it is deceptively and confusingly similar to their trade mark "EVERREADY 999". Furthermore Application No 64565 of the appellants, photo copy whereof is produced in the file as F-1 shows label of "EVERLIFE 990" in a form and design which is different from the label of the respondents and it is alleged that of late appellants have changed their label to make it look exactly like the label of the respondents. These facts indicate that respondents/plaintiffs have made out a strong prima facie case for temporary injunction.
5. ' It is contended on behalf of the appellants that in the two labels consideration, words "LIFE" and "READY" and numerals "990" and "999" are different and distinct from each other, hence points of dissimilarity are greater than points of similarity, hence unwary purchaser is not likely to be misled or confused about what he proposes to by. Reliance is placed on Pakistan Soap Factory v.
6. Chittagong Soap Factory (1). It is held by the Supreme Court in this case that if commodities are identified and known by numerals, then no confusion can arise if even one digit of number be different. Unwary purchaser although not expected to be wary is not expected at the same time to keep his eyes shut. The facts of the aforementioned reported case were that an application of registration of trade mark "1947" on soaps manufactured by Pakistan Soap Factory and sold in the market for a number of years was opposed by Chittagong Soap Factory on the ground that they were already proprietor of a registered trade mark in respect of similarly shaped washing soap bearing numerals "1937", Registration was refused on the ground that similarity between the two trade marks both visual and phonetical was very close and likely to create confusion in the minds of purchasers. It was held by the Supreme Court that :- "On a careful and overall appraisement of the affidavit evidence produced by both sides in this case, we are of the opinion that the appellants have proved concurrent and honest use of their trade mark for quite a long time, which is not satisfactorily rebutted by the affidavit evidence produced by the respondent. In or view, the Deputy Registrar and the learned Judges of the High Court have erred legally in refusing registration of the appellant's trade mark. In the result, we accept this appeal, set aside the order of the Deputy Registrar and of the High Court, and direct that the appellant's trade mark, covered by their Application No, 33181 dated the 27th August, 1960, be duly accepted and registered. The, parties will bear their own costs throughout."
7. ' It is apparent that facts of the reported case as stated above are different and distinguishable from the present case In the reported cast dispute was between two Trade Marks "1937" and "1947" which were used for soaps. Except this similarity in numerals, there were many other points of dissimilarity in the two fascinules. Markings were different...Words and figures were printed differently and not only that but even their sizes were different. {{FOOT NOTE}}
(1) PLD 1970 SC 460 {{FOOT NOTE}} ' In the case under consideration I have carefully examined and compared the two labels in dispute marked A and B on this file. The size of both is same. Both are box covers to carry 12 spools.
8. Colour scheme is same i,e, red on top, yellow in the middle, then green and blue at the bottom.
9. Designing, printing and the sizes thereof are almost same. Words and letters are of same size, "EVERREADY" and EVERLIFE" are printed in white against the background of blue with "999" and 990" in an egg like circle in the background of black. In the middle are printed word Brand, Mercerised sew ing thread in very similar manner. Then there is a small triangle containing monograms with different letters of AB and FB and at the bottom names of manufacturers. On both sides are printed in Sindhi and Urdu almost the same words "neat, clean and strong thread for stitching. The only difference between the two is that one is "EVERREADY 999" and the other is "EVERLIFE 990" so the difference in reading is "LIFE" instead of "READY and "0" instead of "9" and of course the small letters in monograms and names of manufacturers. On very close scrutiny it can be found that colours in "EVERLIFE" liable are just a little shade lighter. From this comparison I have formed the opinion that both labels are very closely similar and can cause confusion and deception in the mind of unwary purchasers. The learned trial Court has rightly put reliance upon Abdul Jabbar and another v.
10. Ahmed Jan which is a decision given by my learned brother Fakhruddin G. Ebrahim, J. This decision is on all fours with the facts of the case under consideration. In the reported case registered proprietor of Trade Mark "Koh-i-Noor Bedi 505" filed a suit under section 21 of the Trade Marks Act, 1940 and obtained interim injunction from the trial Court against the manufacturers of "Koh-i-Soor Bidi 506" sod in wrappers identical in colour, design and get-up as that of plaintiffs registered Trade Mark. In appeal against the grant or interim injunction, it was held by the learned Judge as under :- "In the present case a cursory look at the two wrappers will show that except for the difference in name and number, namely, Koh-iSoor Bidi instead of Koh-i-Noor Bidee and 506 instead of 505, the two wrappers are identical so much so that even the name and numbers are written in the same manner. Again the design and they colour scheme of the two wrappers are identical. There is in my opinion substantial resemblance between the two wrappers, in material respects, which is likely to deceive or cause confusion in the mind of unwary purchasers."
11. The decision mentioned above is fully attracted to the facts of the instant case and I rely upon it. In this view of the matter I am of th opinion that the two labels are very similar to each other and are likely to cause deception and confusion in the minds of the unwary purchasers. B For these reasons, I hold that the learned Additional District Judge has rightly granted interim injunction and there is no merit in this appeal which is hereby dismissed with costs.