' IRFAN SAADAT KHAN, J.---This Miscellaneous Application has been filed under section 114 of the Trademark Ordinance, 2001 (the Ordinance) challenging the order dated 29-8-2007 passed by the Registrar Trademarks (the Registrar) whereby the opposition filed by the appellant was dismissed.
2. Briefly stated the facts of the case are that the appellant imported Battery Cells under the different Brand names such as ROCKET, RADO and POWER FLASH etc. From China through LINYI HUATAI BATTERY CO. LTD. Shandong, China. That in order to protect its rights the appellant applied for registration of the Trade Mark POWER FLASH vide application No,172530 in Class 9 dated 17-7- 2001. It was accepted for advertisement in the Trade Marks Journal vide TMR letter No,TM- 21004/2002 dated 28-12-2002. Subsequently it was advertised in Trade Marks Journal No,643 of August, 2004. However against the said Trade Mark an opposition was filed by the respondent No,1 in the year 2004. The respondent No,1 also filed an application bearing No,154129 in class 9 for registration of its Trademark POWER + PLUS, which was objected by the present appellant by filing an opposition bearing No,353 of 2004.
3. Both these oppositions i,e, the one filed by the appellant bearing No,353 of 2004 and the other filed by respondent No,1 bearing 984 of 2004 were taken up together by the respondent No,2. After hearing the arguments of both the sides, the respondent No,2 vide a consolidated and exhaustive order dated 29-7-2007 dismissed the- respective oppositions filed by the appellant as well as by the respondent by allowing the registration in respect of both the applications i,e, the one filed by the appellant and the other filed by the respondent, vide their respective applications bearing Nos.154129 and 172530. Thereafter against the said consolidated order only the appellant has filed this present appeal, whereas no appeal has been filed by respondent No,1, meaning thereby that the respondent No,1 has accepted the order passed by respondent No,2, so far as the dismissal of their opposition is concerned.
4. Mr. Munawar Ghani, advocate has appeared on behalf of the appellant and stated that the Registrar was not justified in dismissing the application filed by the appellant as respondent No,1 is a mere licensee of the product and as per the relevant provisions of the law licensee is not entitled for registration of a Trademark. He has invited my attention to Annexure-C-1 at page 103 of the file, pertaining to a formal authorization and a license given to the respondent No,1 mentioning therein that they may use the name in the course of their business directly or indirectly. He submitted that firstly this certificate appears to be forged and secondly, the said certificate gives authorization to the respondent No,1 to act as a licensee only and the licensee is not authorized to be granted Trademarks registration. To elaborate his viewpoint the learned counsel has produced an extract from Hutchinson Encyclopedia to show that Liechtenstein is a small area between Switzerland and Austria and not Switzerland itself. Hence according to him the certificate appears to be a managed one on the very face of it. He further stated that the term POWER + PLUS used by the respondent No,1 is deceptive in nature and there is every likelihood that a man of common parlance would be deceived with this term with that of Trademark POWER FLASH used by the appellant. He further stated that the order passed by Registrar is non-speaking one as he has not discussed the averments in their proper perspective and the same is hit by section 24-A of the General Clauses Act. In the end learned counsel submitted that since the order passed by the Registrar is not in accordance with law, therefore the same may be set aside. In support of his above contentions the learned counsel has relied upon the following decisions:--
(1) 1992 M LD 2357 Re: [National Detergents Limited v. Nirma Chemical works and another]
(2) 1928 Volume 45 RPC 193
(3) 1928 Volume 45 RPC 421
(4) 1909 Volume 26 RPC 850.
5. Mr. Naveed Ahmed advocate learned counsel has appeared for the respondent and at the very outset stated that the present appeal filed by the appellant is time barred under Rule 85 of the Trademarks Rules 2004. He invited my attention to the date of decision, the date of the application, the date of receiving of copy of the impugned decision by the appellant and date of filing the appeal in this behalf. According to the learned counsel since the appeal is barred by limitation therefore the same is liable to be dismissed. On merits of the case he stated that the word "POWER" is a word of general description and use of which cannot be given exclusively to the appellant. He states that the Registrar in para 11-B of his order, which is available at page 45 of the file, has categorically mentioned that a number of companies are using the Trademark "POWER", hence, the Registrar was justified in dismissing the opposition filed by the appellant. He further stated that the respondent has been using POWER + PLUS since 1979 and their opposition was prior to the opposition filed by the appellant. He finally stated that no application under section 5 of the Limitation Act was filed by the appellant for extension of time and in absence of such application appeal is liable to be dismissed. In support of his above contentions the learned counsel has relied upon the following decisions:--
(1) 1994 SCM R 918 Re: [Exon Corporation and Esso Inc. v. Syed Nasir Ahmed Jafry and another]
(2) 2009 CLC 339 [Clifford Chance v. Assistant Registrar of Trade Marks]
(3) 1986 CLC 2622 [Arshad Nasim v. Registrar of Trade Marks and another]
6. Learned counsel for the appellant in his rebuttal submitted that section 76 of the Trademarks Act 1940, Rule 84 of the Revised Trademarks Rules 1963 and Rule 85 of the Trademarks Rules 2004 deal with the provision of filing an appeal before the High Court. According to him in all these provisions it has categorically been mentioned that an appeal has to be filed within two months from the date of the decision or within such further time as the High Court may allow. He submitted that it is the discretion of the Court to condone the delay. However he concedes that no application for condonation of delay has been filed.
7. I have heard both the learned counsel at considerable length and have perused the relevant law and decisions relied upon.
8. Before proceeding any further it would be pertinent that if the legal issue raised by the learned counsel for the respondent that the appeal is time barred be first addressed.
' The order of the Registrar was passed on 29-8-2007 whereas the present appeal has been filed on 9-1-2008 i,e, after 133 days of the passing of the order. If from these days the period consumed in obtaining the copy is excluded the position would be that the appellant applied for copy on 25- 9-2007, the copy was prepared on 12-11-2007 and it was issued on the same date i,e, 12-11-2007 and if the said period consumed in obtaining the copy whereof which comes to 48 days is excluded from 133 days, 85 days would come, whereas the period for filing an appeal is 60 days meaning thereby the appeal is barred by 25 days. There may be a slight difference in calculating the period but the fact remains that the appeal is barred by limitation, which has not been denied by the learned counsel for the appellant.
9. Before proceeding any further it would be pertinent if the relevant law is first discussed. Section 76 of the Trade Marks Act 1940 states as under:- "76. Appeals. Save as otherwise expressly provided in this Act, an appeal shall lie, within the period prescribed by the Federal Government, from any decision of the Registrar under this Act or the rules made thereunder to the High Court having jurisdiction: ' Provided that if any suit or other proceeding concerning the trade mark in question is pending before a High Court or a District Court, the appeal shall be made to the High Court or, as the case may be, the High Court within whose jurisdiction that District Court is situated."
' Rule 84 of the Revised Trademarks Rules 1963 states as under: "84 Time for appeal. An appeal to a High Court from any decision of the Registrar under the Act or these rules, shall be made within two months from the date of such decision".
' Rule 85 of the Trade Marks Rules 2004 states as under: "85. Time for appeal. An appeal to the High Court from any decision of the Registrar under the Ordinance or these rules shall be made within two months from the date of such decision or within such further time as the High Court may allow".
10. A cumulative reading of the above provisions of law would reveal that an appeal shall lie against the order passed by the Registrar before the High Court within whose jurisdiction the office of the said Registrar is situated. The said appeal is to be filed within two months from the date of such decision or within such further time as the High Court may allow meaning thereby i,e, appeal has to be preferred against the order of the Registrar within the territorial jurisdiction falling in the respective High Court of that area and that appeal shall have to be made within two months from the date of such decision or within such time as the High Court may allow.
11. From the reading of the above laws two things are clear; firstly that an appeal should be made within two months and if an appeal, due to any reason is not filed within the said period, the High Court has the authority under the law. To allow further time. However a question is to be answered whether extension of such time would be made by the High Court on its own or on a proper and specific application in this regard. Before answering the above questions it would be pertinent if some decisions of the superior Courts, with regard to filing of appeal within stipulated period, be first discussed. In the case of Clifford Chance v. Assistant Registrar of Trade Marks reported in (2009 CLC 339) Mr. Justice Munib Ahmad Khan (as he then was) has observed as under:-- "8. Keeping in view the above legal provision, it appears that since word "Shall" has been used in rule 84 while there is no application for condonation of delay nor the Limitation Act has been made applicable in this law as specific time period has been provided by the Special Law on the subject of Trade Marks. It is settled principle of law that even if the limitation is not pointed out or objected to, by any party then Court itself has to consider as to whether the matter before it is within time or not and that the legal objection in respect to maintainability etc. Can be taken and raised at any time and same is to be decided on priority. The citation referred to by the counsel for the appellant do not suit the instant matter.
9. In view of the above facts and circumstances, I find that the appeal against the impugned decision is barred by time, hence dismissed."
' In another case of Arshad Nasim v. Registrar of Trade Marks and another (1986 CLC 2622) Mr. Justice Saleem Akhtar (as he then was) observed as under:- "It is thus clear that section 5 of the Limitation Act is not applicable to the appeal filed under the Trade Marks Act. The appeal is therefore, patently time-barred, and is dismissed."
12. Now I would like to dilate upon the arguments taken by learned counsel that this Court has jurisdiction to condone the delay in view of Rule 85. This Court though has the jurisdiction to allow further time after considering the merits of the case but this power, in my view, could only be exercised if an application for condonation of delay is filed in this behalf. This is an admitted position that no application for condonation of delay has been filed by the appellant.
' Now the question is whether in absence of such application delay could be condoned? In my view the answer to this question is in Negative, as no such request application for allowing time has been admittedly filed by the appellant. Here I would like to refer to certain decisions on which I was able to lay my hands. In the case of Messer's Star Cotton Corporation (Pvt.) Ltd. Karachi v. Collector of Customs, Karachi and another reported in (2010 PTD 1739) wherein honourable Mr. Justice Faisal Arab observed as under:-- "This Court vide order dated 28-9-2009 dismissed all the references holding that the Tribunal was right in dismissing the appeals of the applicants as the applicants failed to avail the remedy before the Tribunal on account of their negligence and no application for condonation of delay has been moved before the Tribunal though it had powers to entertain such application under section 46 of Sales Tax Act. It was held that under section 3 of the Limitation Act, if an appeal is barred by time and no condonation is sought, then the appeal is to be dismissed. This order of Division Bench of this Court has been challenged in the present review application and has come before the Single Bench as one of the members of the Bench which decided the reference has retired. Reference was dismissed on the ground that appeal before the Tribunal was found to be time-barred and no condonation of delay was sought. Counsel for the applicant has failed to point out any legal infirmity in such finding. Case-law cited by the applicant i,e, PLD 1953 Dacca 209, 1997 CLC Karachi 1332 and 2008 PTD 169, are not relevant to the facts of the present case.
Hence these review applications are dismissed".
' In another case Abid v. The State (1998 SCM R 1146) Hon'ble Supreme Court observed as under:- "Learned Courts below were, in the circumstances, justified in recording the conclusion that the delay in lodging the F.I.R. Was satisfactorily explained. The conclusions recorded by both the learned Courts below were properly and reasonably drawn. No case for interference is, thus, made out. Even the petition for leave to appeal is barred by limitation by 57 days and no application seeking condonation of delay has been filed and the petition is liable to be dismissed on the point of limitation".
' In the case of Honda Atlas Cars (Pakistan) Ltd. v. Honda Sarhad (Pvt.) Ltd. And others (2005 SCMR 609) honourable Supreme Court observed as under:-- "13. In view of above discussion, we are inclined to hold that as in the instant case, the respondents were duly served, they had full knowledge about hearing of the case in view of the legal provisions noted hereinabove, as such for setting aside the order, dated 13th March, 2000, whereby their suit was dismissed in default as well as for setting aside ex parte decree dated 20th June, 2000, they ought to have approached the Court within 30 days in view of the provisions of Articles 163 and 164 of the Limitation Act and if there was delay in filing applications, they should have invoked the provisions of section 5 of the Limitation Act. Because, respondents had not approached to the Court for setting aside orders adversely operating against them, within 30 days, nor there was any request for condonation of delay in filing of applications, therefore, learned trial Court, vide orders dated 17th September, 2001, had rightly declined to restore the suit and to set aside ex parte decree. Thus, the orders being proper and legal were not revisable by the learned High Court in its appellate jurisdiction."
' In the case of Miss Rahat Afroze v. State Life Insurance Corporation and others (2008 SCMR 656) honourable Supreme Court observed as under:- "3. The learned counsel then contended that petitioner had also challenged order, dated 15-11- 2002. It may be noted that this petition was filed on 29-3-2003, therefore, it would be barred by time against the original order of the Tribunal. Surprisingly for seeking condonation of delay no application has been filed. It is to be observed that as the representation filed by the petitioner before the Tribunal after passing order, dated 15-11-2002 was not competent, therefore, the time for filing of the petition before this Court against this order shall not be arrested and it would continue running against her.
4. Thus, under these circumstances, we are of the opinion that the instant petition is not impotent and the same is dismissed and leave declined."
13. In view of the explicit findings of the Courts mentioned supra, I am of the view that the resent appeal is not entertainable on two grounds firstly it is barred by limitation secondly since there was no application for condonation of delay therefore no relief can be given to the appellant by way of implied condonation of delay.
14. As I have dismissed the appeal on the ground of limitation, I need not discuss the merits of the case, since it is a trite of proposition of law that if an appeal is not maintainable on the very face of it being barred by limitation, then there is no need to discuss and to dilate upon the merits of the case. The appeal is therefore dismissed.