' MUHAMMAD FARRUKH IRFAN KHAN, J.---This order shall decide F.A.O. No,23 of 2014 instituted by the appellant/defendant calling in question order dated 20-12-2013 of the learned Additional District Judge, Gujrat whereby an application under Order (XXIX, Rules 1 and 2, C.P.C. For grant of temporary injunction filed in a suit for infringement of a registered trade mark, was allowed restraining the appellant/defendant from using the registered trade mark "YOUNAS FAN" for manufacturing or selling fans in the market till final decision of the suit.
2. Brief background giving rise to the filing of the captioned F.A.O. Is that the respondents/plaintiffs claiming to be owners/directors of Younas Metal Works Private Limited filed a suit for permanent injunction to restrain the appellant/defendant from manufacturing and selling of electric fans under their registered trade mark. "YOUNAS FAN" on the basis that the licence agreement, which was entered into between the parties only for three years had expired on 15-10-2012 and yet the appellant/defendant is continuing to illegally and unlawfully manufacture and sell electric fans under their registered trade mark "YOUNAS FAN" along with their own trade marks "AL-KHAIR FANS" and "AL-ARIF FANS" thus causing confusion and deception in the market misleading the customers.
3. It is admitted by learned counsel for the appellant/defendant that licence agreement was entered into between the parties for a period of three years vide agreement dated 15-10-2009, however, he has gone on to argue that as the respondents/plaintiffs failed to meet certain obligations which were set out in the said licence agreement the matter was referred to the arbitrators with mutual consent of the parties and the arbitrators have issued an award of Rs,40,065,268 along with some more adjustable amount in favour of the appellant/defendant. He submits that according to licence agreement the appellant/defendant had to provide two years warranty for the manufactured fans as such, he could not be allowed to stop manufacturing until two years after the date of expiry of the licence agreement. Adds that the respondents/plaintiffs had made a partial payment of Rs,500,000 in pursuance of the award given by the arbitrators as such, they have partly accepted the award and they are, therefore, bound to follow the remaining stipulations of the award which, inter alia, permits the appellant/defendant to manufacture fans till the final payment as awarded is not realized.
4. Arguments heard. Record perused.
5. It is an admitted position that the respondents/ plaintiffs are the registered proprietors of trade mark "YOUNAS FAN" and they had entered into a licence agreement, with the appellant/defendant to manufacture and sell fans under their registered trade mark for a period of three years vide licence agreement dated 15-10-2009. The said licence agreement has not been annexed with this F.A.O., however, on Court's query uncertified copy whereof has been provided by learned counsel for the appellant/defendant, which is placed on the file as Mark-A. Clause E(1) of the said licence agreement provides as under:- {{URDU TEXT}} ' No where in the licence agreement it is stated that in case of financial dispute or any other dispute, the duration of the licence agreement would be deemed to be extended beyond the fixed term of three years ending upto 15-10-2012 and the learned counsel for the appellant/defendant has been unable to satisfy me on this aspect.
6. The second contention of learned counsel for the appellant/defendant that the award given by the arbitrators being in favour of his client, also entitles him to continue with use of the trademark "YOUNAS FAN" under the licence agreement, is totally misconceived as firstly the award, if any given by the arbitrators has not been made the rule of Court as yet and secondly even if it is so, the award being in the shape of monetary compensation , cannot be substituted and considered as a further licence, permission or authority to use the registered trade mark of the respondents/plaintiffs.
7. The learned Additional District Judge, Gujrat was to adjudicate upon application under Order XXXIX, Rules 1 and 2, C.P.C. While keeping in view the pleadings and the materials which were placed 'before him by the respective parties, therefore, to my mind, the learned Court below has correctly applied the said provisions of law as the fact that the trade mark is duly registered in favour of the respondents/plaintiffs, and the terms of the licence agreement to use the said trade mark have already expired on 15-10-2012 would, prima facie, give cause of action to respondents/plaintiffs. Furthermore, if the registered trade mark of the respondents/plaintiffs is continued to be used by the appellant/defendant without any authority, this would violate their exclusive statutory right to, use the trade mark themselves or authorize others to do so on their behalf. It would tarnish the reputation and goodwill of the said trade mark which would result in an irreparable loss to the respondents/plaintiffs. Once a licence agreement has expired, the permission to use the trade mark ceased to exist. Any use of the registered trade mark by the appellant/ defendant without or outside the permission/licence given by the respondents/plaintiffs would result in infringement of the rights vested in the trade mark by virtue of valid registration, which is not permissible under the law. On the basis of trade mark registration alone, the respondents/plaintiffs had a prima facie case, balance of convenience and likelihood of irreparable loss in their favour for the grant of an interim injunction. On the other hand, if any condition of the licence agreement has not been fulfilled by the respondents/ plaintiffs then the appellant/defendant can be compensated monetarily and they do not stand to suffer any irreparable loss. As the respondents/plaintiffs have a prima facie case in their favour and are likely to suffer an irreparable loss, the balance of convenience will tilt in their favour.
8. In view of the above discussion, the impugned order dated 20-12-2013 does not suffer from any illegality or wrong exercise of jurisdiction. This FAO being misconceived and devoid of any merit is, therefore, dismissed in limine.