' AQEEL AHMED ABBASI, J.---Being aggrieved and dissatisfied with the order dated 19-1-2015 passed by the learned Single Judge of this Court in Suit No.1461 of 2013 on C.M.A. No.12775 of 2013 filed by the appellant under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C., whereby the application for grant of injunction has been dismissed, the appellant has preferred instant appeal with the prayer to set aside the impugned order dated 19-1-2015 and to allow the appellant's application i.e. C.M.A. No.12775 of 2013.
2. Brief facts as stated in the memo of appeal are that the appellant company i.e. Independent Media Corporation (Pvt.) Ltd. (IMC) is duly incorporated under Companies Ordinance, 1984, registered with the Securities and Exchange Commission of Pakistan and claims to be Pakistan's largest Media conglomerate and member of Jang Group of Newspapers, who also runs several TV Channels as part of the GEO Television Network. The appellant in the year 2007 applied for registration of a trademark "Pakistan Idol Bol", which according to the learned counsel for the appellant was subsequently amended and got registered as "BOL" in clause 41, whereas, its application for registration in clause 38, according to the appellant, has also been accepted. It is further stated that respondent being aware of registration of trademark "BOL" in favour of the appellant, incorporated a company in the year 2013 under the name of "BOL News (Pvt.) Ltd." and "BOL Enterprises (Pvt.) Ltd." Pursuant thereto, respondents also filed several Trade Marks applications including one for Trade Marks "BOL" and started to actively publicize and marketing their channel, which they are purportedly launching under the Trade Marks "BOL". The appellant, on infringement of their trade mark by the respondents felt aggrieved and initiated legal action and filed a Suit bearing Suit No.1461 of 2013 before this Court, seeking declaration and injunction and also filed an application bearing C.M.A. No.12775 of 2013 for interlocutory injunction against the respondents, on which, ad interim injunction was granted in favour of appellant vide order dated 19-11-2013, which continued to be in force until 19-1-2015, when through impugned order the injunction application filed by the appellant has been dismissed and the interim order granted in favour of the appellant has been recalled. Instant appeal arises from the order dated 19-1-2015 passed by the learned Single Judge.
3. It is inter alia contended by learned counsel for the appellant that the appellant has a trademark "BOL" duly registered in its favour with the Registrar of Trade Marks vide application No.238904 in clause 41, whereas, the respondents did not have any registered trademark "BOL" in their favour, however, they suddenly started to use such trademark by advertising the same in the social media website and to launch a satellite TV Channel by using the Trade Marks "BOL", therefore, the appellant was left with no other option but to initiate the legal proceedings against the respondent by filing the Suit No.1461 of 2013 along with C.M.A. No.12775 of 2013 seeking injunction and restraining order against the respondents from using the trademark of the appellant "BOL". Per learned counsel, the learned Single Judge was pleased to grant ad interim injunction in favour of appellant vide order dated 19-11-2013, whereby notices were issued to the respondents for 26-11-2013 and till next date, however, subject to the condition that any use of the word "BOL" by respondents solely by virtue of the effect that such word is part of the company name of the respondent and such company name is being used for any of the purposes or requirement of the Companies Ordinance, shall not constitute violation of the order made today. It has been contended by the learned counsel for the appellant that such ad interim order was granted in favour of the appellant as the appellant could demonstrate a prima facie case for grant of injunction in view of the fact the appellant has a registered trademark "BOL" with the Registrar of Trade Marks vide application No.238904 in clause 41. Whereas, a certified copy was also issued from the office of Registrar, Trade Marks to this effect. Per learned counsel, in terms of provisions of section 43 read with section 13 of the Trade Marks Ordinance, 2001, there is legal presumption that if there is an entry in the Register of Trade Marks, whereas, in the absence of any rectification in this regard in accordance with law, such registration of trademark issued in favour of any party is to be treated as a proof of having a valid trademark, whereas, according to learned counsel, a printed, written, computer generated copy of any entry in the register purported to be certified by the Registrar and seal with the Trade Marks Registrar shall be admitted in evidence of High Courts and District Courts of Pakistan and in all proceedings without further proof or production of the original. Similarly, per learned counsel, certificate purported to be issued under the hand of the Registrar as to any entry, shall be prima facie evidence of the entry having been made in the Register. Learned counsel further submits that the amendment sought by the appellant through TM-16 was granted on 7-6-2013, whereafter, said amendment was advertised in accordance with law, however, according to learned counsel, no opposition or objection was filed by the respondent within statutory period of two months, therefore, no adverse inference against registration of a trademark in favour of the applicant could be drawn by the learned Single Judge on the pretext that since an inquiry is pending against such registration before the Registrar of Trade Marks, therefore, the appellant has no prima facie case for grant of injunction. Per learned counsel, such finding is contrary to the express provision of Section 43 as well as in conflict with the ratio of the judgment of the Hon'ble Supreme Court in the case of Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant (1987 SCM R 1090).
4. In support of his contention, learned counsel for the appellant has referred to annexure 'C' available at page 63 of the instant appeal i.e. Form T.M.I, which according to learned counsel reflects that pursuant to a request seeking permission to amend the trademark from "Pakistan Idol" to "BOL" made on Form TM-16 on 7-8-2007 was duly allowed vide order dated 7-6-2013 by the Registrar, Trade Marks, whereafter, according to learned counsel, such amendment was duly advertised in the Trade Marks journal, whereafter, no objection or opposition was filed by the respondents within two months from the date of such publication as required by law. Learned counsel for the appellant has also referred to annexure C-10 available at page 83 of the instant appeal issued from the office of Trade Marks Registry, Karachi, on 13-11-2013, which according to learned counsel for the appellant, reflects that the trademark "BOL" is a registered trademark in favour of the appellant in clause 41. Learned counsel has also referred to annexure C-11 available at page 85 of the instant appeal, which according to learned counsel for the appellant, reflects the application No.238904, date of filing of such application as 11-7-2007, and registration of trademark "BOL" in favour of the appellant IMC (Pvt.) Ltd. Per learned counsel, since a certified copy has been issued under section 11 read with section 121(2) of the Trade Marks Ordinance, 2001, read with Rule 84 on 13-11-2013 by an authorized Officer from the office of Trade Marks Registry in respect of trademark No.238904 and in favour of the appellant in respect of trademark "BOL" in clause 41, therefore, such fact alone establishes a prima facie case in favour of the appellant as issuance of certified copy as referred to hereinabove is sufficient proof that a mark has been registered in favour of appellant in the Registry of Trade Marks. Learned counsel further submits that the learned Single Judge has misdirected himself while observing that since Trade Marks certificate has not been duly signed by the Registrar, Trade Marks, therefore, the appellant could not establish a prima facie case, whereas, in the absence of such certificate of registration, the certified copy issued from the office of the Registrar, Trade Marks as referred to hereinabove is sufficient proof regarding registration of trademark, and the registration of entry in the Trade Marks register and unless proved otherwise the same is to be treated as a valid legal document in terms of section 43 read with section 11 of the Trade Marks Ordinance, 2001. It is further contended by the learned counsel for the appellant that section 11 is to be read with section 7 of the Ordinance, 2001, which reflects that the authority of a Registrar can be delegated through authorization and can be exercised by any other officer of the Trade Marks Registry. Learned counsel for the appellant has also referred to provision of section 33 of the Ordinance, 2001 relating to registration of a trademark and submits that once an application for registration of trademark is accepted after compliance of all the codal formalities and advertisement in the Trade Marks Journal and no notice of opposition is received within period specified in subsection (2) of section 28 of the Ordinance, 2001, the Registrar of Trade Marks is required to publish the Advertisement in the prescribed manner and to issue a certificate to the applicant in the prescribed form of registration with the seal of Trade Marks Registry.
Therefore, according to learned counsel, in view of facts and circumstances of this case and the material produced before the learned Single Judge of this Court, legal presumption of registration of trademark "BOL" in favour of the appellant was established, whereas, no adverse inference could be drawn by the learned Single Judge in this regard, particularly when the respondent could not also made out a prima facie case regarding registration of trademark "BOL" in their favour, particularly when the application filed by the respondent in their Suit for grant of injunction has been dismissed by the learned Single Judge through impugned order, whereas, the respondents have not filed any appeal against such order. While concluding his arguments, learned counsel for the appellant submits that even if a triable case is made out by any party for grant of injunction in respect of registration of a trademark and its infringements, injunction would have been granted in favour of the claimants, whereas, in the instant case, according to learned counsel for the appellant, the appellant did establish a prima facie case, which aspect of the matter has been misconceived by the learned Single Judge, who has been pleased to dismiss the injunction application by misinterpreting the relevant provisions of the Trade Marks Ordinance, 2001. It has been contended by the learned counsel for the appellant that the appellant has a prima facie case and the balance of inconvenience is also in his favour, whereas, if the interim injunction is not granted in favour of the appellant, the appellant will suffer irreparable loss and injury. Per learned counsel, the respondent, who has no registered trademark "BOL" in his favour could not even establish prima facie case, hence could not be allowed to use the said trademark registered in favour of the appellant. It has been prayed that the impugned order may be set aside and the ad interim injunction granted by the learned Judge in favour of the appellant vide order dated 19-11- 2013 may be restored till disposal of the Suit. In support of his contention, learned counsel for the appellant has placed reliance in the following case law:-
(I) Pioneer Cement Limited v. Fecto Cement Limited PLD 2013 Lah. 110
(2) Messrs Dewan Sugar Mills (Pvt.) Ltd. v. M. B. Abbasi and others 2007 YLR 2672 (Karachi)
(3) Dollar Industries (Pvt.) Ltd. And another v. Nisar Traders and 7 others 2011 CLD 847
(4) Messrs Team Nayyer (Pvt.) Ltd. v. Tariq Ahmed Sultani 2008 CLD 94 (Karachi)
(5) Messrs Alpha Sewing Machine Company v. Registrar of Trade Marks and another PLD 1990 SC 1074
(6) Shan Food Industries v. Eastern Products (Pvt.) Ltd and others 2012 SCMR 1504
(8) Bayer AG. Through Authorized Signatory and another v. Bayhealth Care (Private) Limited 2013 CLD 2087
5. Conversely, Mr. Anwar Mansoor Khan, learned counsel representing the respondents Nos.1 to 8 filed counter affidavit to the appeal and the application along with Annexures and has vehemently controverted the facts as stated in the memo of appeal and the submissions made by the learned counsel for the appellant. Learned counsel for the respondents at the very outset has contended that the factual assertions made by the appellant in the Suit as well as in the instant appeal are incorrect and contrary to the record of the office of Registrar Trademarks. According to learned counsel, the appellant never applied for registration of trademark "BOL" in clause 38 (application No.195773) or clause 41 (application No.238904) filed on 15-5-2004 and 11-7-2007 respectively before the Registrar, Trademarks. It is contended by the learned counsel for the respondent that admittedly the original file is not available in the Registrar's Office, and the same has been reconstituted at the request of the appellant, whereafter, certain documents have been filed by the appellant, which do not have proper acknowledgement of having been filed in the office of Registrar in terms of Rule 24 of Trade Mark Rules, 2004. Learned counsel further submits that admittedly, as per official record, no certificate of registration has been issued by the Registrar, Trade marks in terms of section 33 of the Ordinance, 2001 and the claim of the appellant is still pending. It is further contended by the learned counsel for the respondents that the appellant did not file the correct documents along with the Suit regarding original application for registration of trademark or the amendment purportedly sought subsequently, whereas, from perusal of the official record, which was sealed by the Nazir of this Court on the direction of the learned Single Judge, it can be ascertained that the appellant applied for registration of trademark as "Pakistani Idol", whereafter, an amendment was sought from "Pakistani Idol" to "Pakistan Idol", whereas, the words "BOL" were missing. Learned counsel for the respondents has referred to page 795 of part-II of file of Suit No.1461 of 2013 showing the data changes log in respect of application No.238904 and referred to entry dated 7-6-2013 showing the mark name as "Pakistani Idol" to "Pakistan Idol" and submits that there was no mention of the mark "BOL", which has been subsequently manipulated by the, appellant through misrepresentation seeking rectification on TM-16 in the garb of reconstruction of the original file, which is admittedly missing. Learned counsel for the respondents has also referred to pages 797 and 799 i.e. Action log of 238904 and referred to entry dated 2-7- 2008 to show that a show cause notice was issued, which remained under process/action till 21-11- 2013 when opposition was filed, and since then, the matter has not proceeded further and is still pending.
' Learned counsel for the respondent after having referred to various documents filed by the appellant in their Suit and the official record seized by the Nazir of this Court on the orders of the learned Single Judge has contended that the appellant did not approach the learned Single Judge with clean hands and has filed and relied on seriously disputed documents. Whereas, per learned counsel, an inquiry in this regard is also pending before the Registrar of Trademarks, and the learned Single Judge, while dismissing the injunction application of the appellant has been pleased to direct that such inquiry shall be concluded within thirty days and result of such inquiry will be taken into consideration by the learned Single Judge in the Suit. It is further contended by the learned counsel that undisputedly the mark "BOL" is still pending which has not yet been registered, whereas, the Registrar has not signed the registration certificate in terms of section 33, therefore, the plea of the appellant regarding legal presumption in terms of section 43 read with section 11 of the Ordinance, 2001 is misconceived in law and fact. It has been further contended by the learned counsel for the respondents that reliance by the appellant on a purported certified copy issued by one Nasreen Akhter for Examiner of Trademarks dated 13-11-2013, in the absence of Certificate of Registration, which according to learned counsel, admittedly has not been signed and issued by the Registrar in respect of trademark "BOL", is also misplaced and of no legal effect as it does not even contain the date of actual registration, whereas, the said officer was not even authorized to issue the certified copy of such certificate, which fact can be further verified from the comments filed by the Registrar, Trademarks in the Suit. Learned counsel further submits that presumption under section 11 is not available to the appellant in the absence of actual registration of the trademark. Per learned counsel, from perusal of the official record it can be ascertained that there was no change whatsoever before June, 2013 nor the mark "BOL" finds mention in any of the TM - applications filed by the appellant, however, it was only after respondent's having applied for registration of such trademark in various classes, the appellant, with mala fide intention and in order to stop the respondents from starting its satellite channel with the mark "BOL" in competition to their TV Satellite Channels, have filed a frivolous Suit, seeking injunction in respect of trademark "BOL".
6. Without prejudice to hereinabove submissions made by the learned counsel for the respondents on the propriety of the claim of trademark "BOL" by the appellant, learned counsel for the respondents has supported the impugned order passed by the learned Single Judge, whereby C.M.A. No.12775 of 2013 filed by the appellant under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Seeking injunction in their favour in respect of mark "BOL", has been dismissed. It has been contended by the learned counsel that the learned Single Judge after having taken stock of all the material facts and documents placed on record as well as after scrutiny of the comments and the record of the Registrar Trademarks formed an opinion that the appellant could not make out a prima facie case for grant of injunction. Moreover, per learned counsel, the other two factors which are required to be taken into consideration while seeking an injunctive relief i.e. Balance of convenience and irreparable loss and injury were neither argued or established by the appellant before the learned Single Judge nor even before this Court the learned counsel for the appellant has advanced any argument to show that the appellant otherwise would suffer irreparable loss and injury, which could not be compensated in terms of money if the injunctive relief is refused. Per learned counsel, since the appellant could not even establish a prima facie existence of a right in the appellant and its infringement by the respondents, therefore, the appellant could not possibly make out a case to the effect that irreparable damage or injury will accrue to the applicant if the injunction is not granted and further the inconvenience which the applicant will undergo in case of withholding the injunction, will be greater than that which may arise from granting injunction. It has been contended by the learned counsel that since the appellant has miserably failed to make out a case for grant of injunction before the learned Single Judge, who while exercising the discretion vested under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Has rightly dismissed injunction application filed by the appellant. It has been further contended by the learned counsel that the appellant has not been able to point out any error or illegality in the impugned order passed by the learned Single Judge of this Court while dismissing the injunction application, therefore, the impugned order does not require any interference by this Court while hearing instant High Court Appeal, as according 'to learned counsel, the discretion vested in the learned Single Judge if exercised in accordance with law, cannot be interfered with by the Appellant Court unless such exercise of discretion is either based on mala fides or has been exercised in violation or in total disregard of law. While concluding his arguments, learned counsel for the respondents submits that the respondents have already suffered serious financial losses on account of ad interim stay, which was obtained by the appellant through misrepresentation of facts and remained operative for more than a year, hence requests that instant appeal may be dismissed and the appellant may be directed to proceed with Suit on merits instead of filing frivolous proceeding and insisting on seeking injunctive order against the lawful business activities of the respondents by launching its TV Channels in the name of "BOL" for which the respondent has already invested huge amount of money and employed number of personnel, whose employments are also on stake in view of stay operating in the instant appeal which may be set aside and the appeal may be dismissed. In support of his contention, learned counsel for the respondents has placed reliance in the following case-laws:--
(I) Messrs Tri-Star Industries (Pvt.) Ltd. v. Messrs Trisa Bursten Tabrik A.G. And others 1999 YLR 638.
(2) Pioneer Cement Limited v. Fecto Cement Limited 2013 CLD 201.
(3) National Detergents Ltd. v. Nirma Chemicals Works 1992 MLD 2357.
(4) Qadeer Ahmed v. Assistant Registrar of Trade Marks 1999 YLR 96
(5) Consolidated Foods Corporation v. Brandon & Co. AIR 1965 Bombay 35.
(6) Azra Jawed v. Jamshed Aslam Khan 1996 MLD 1203.
(7) Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092.
(8) Muhammad Abid v. Nisar Ahmed 2000 SCMR 780.
(9) Abdul Wasim v. Messrs Haico 2002 CLD 1623.
(10) General Biscuit v. English Biscuit Manufacturers (Pvt.) Ltd. 2004 CLD 680.
(11) Messrs Akhter Muhammad and Brothers v. Muhammad Nabi and Brothers 2011 CLD 1730.
(12) Naseem Ahmed v. Messrs Samiuddin Ramzan Khan 2004 CLD 315.
(13) Messrs Macter International (Pvt.) Ltd. v. Messrs Sante (Pvt.) Limited 2007 CLD 978.
(14) Soneri Travel and Tours Ltd. v. Soneri Bank Limited 2011 CLD 193.
7. Mr. Munawar Ghani, learned counsel representing Registrar, Trade marks, has submitted that pursuant to order passed by the learned Single Judge of this Court, whereby the Registrar, Trademarks was directed to conduct an inquiry in respect of subject controversy, the inquiry has been concluded and report prepared, which has been placed on record, whereas, copies have been supplied to the learned counsel for the parties. It has been further contended by the learned counsel that as per record and the comments filed on behalf of the Registrar, Trade Marks, the mark "BOL" has not yet been registered in the name of appellant nor the Registrar, Trade Marks, has signed the certificate of registration in this regard, whereas, the officer who has issued certified copy of registration certificate, was not duly authorized by the competent authority for such purpose. On a query of this Court to the effect as to whether, in the absence of Registration of Trademark or issuance of Certificate of Registration by the Registrar in terms of section 33 of the Trade Marks Ordinance, 2001, the mark can be treated as a valid registered mark, learned counsel for the respondent in response to such query has candidly stated that in the absence of registration of a trademark, entry in the Register of Trade Marks, and non-issuance of Certificate of Registration by the Registrar, no right can be claimed in respect of such mark, whereas, act of any infringement of trade mark can only take place when there is a registered trade mark.
8. We have heard the learned counsel for the parties, examined the record with their assistance and also perused the impugned order passed by the learned Single Judge, whereby, the injunction application filed on behalf of the appellant in Suit No.1461 of 2013 i.e. C.M.A. No.12775 of 2013 under section 94 read with Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. And the injunction application filed by the respondent in Suit No.1584 of 2013 i.e. C.M.A. No.13905 of 2013 under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Have been dismissed. Since the respondents have not filed an appeal against dismissal of their injunction application as referred to hereinabove, however, they have supported the impugned order passed by the learned Single Judge, whereby, the injunction application filed by the appellant in Suit No. 1461 of 2013 has been dismissed, therefore, while deciding instant High Court Appeal, we would refer to the facts as recorded by learned Single Judge in the impugned order, primarily relating to the facts in Suit No.1461 of 2013 and as stated in C.M.A. No.12775 of 2013 and the material placed on record by the respective parties in support of their claim. We have also observed that the learned Single Judge has recorded the relevant facts as stated by both the parties in support of their respective claim and entitlement over the trademark "BOL", which appears to have not been materially disputed before us through instant appeal. However, from the perusal of the contents of instant High Court Appeal and the arguments advanced by the learned counsel for the appellant, it can be safely concluded that the appellants have expressed their grievance on certain legal grounds in the following terms:--
(i) That the learned Single Judge has erred on facts and law by having equated the certified extract of an entry from the register of trademarks as certificate of registration, whereas, according to learned counsel for the appellant, such certified extract of an entry, in the absence of any rectification in accordance with law, even if issued, by an officer below the rank of Registrar of Trademarks, is a prima facie proof of registration of trademark in the register of Registrar in terms of sections 11, 33 and 43 of the Trademarks Ordinance, 2001, hence impugned order is liable to be set aside.
(ii) That once permission for seeking amendment in trade mark from "Pakistan Idol Bol" to "BOL" filed through TM-16 was allowed by the Registrar of Trademarks, which was subsequently advertised in the official gazette and as per appellant, no objections were filed thereon from any quarter within the stipulated period as provided under the law, the Registrar was bound to issue a certificate of registration in favour of the appellant in respect of trademark "BOL", whereas, non- issuance of certificate of a registration by the Registrar would not effect the right of the appellant to claim such trademark as a duly valid trademark in favour of the appellant, hence the impugned order passed by the learned Single Judge is in negation of section 41 of the Trademarks Ordinance, 2001.
(iii) That the learned Single Judge has erred in law and fact by not recognizing the prima facie case in favour of the appellant on the basis of certified copy of the entry of register of trademarks issued from the office of Registrar, and instead, relied on the documents filed on behalf of the respondents, who could not establish their case for grant of injunction in their favour in respect of trademark "BOL" in their Suit No.1584 of 2013, and have not even filed any appeal against such order dismissing their injunction application.
(iv) The learned Single Judge has ignored all the three factors required to be taken into consideration while granting injunctive relief to a party i.e. (i) prima facie case (ii) balance of inconvenience and (iii) irreparable loss and injury, which were/ are in favour of grant of injunction in favour of appellant, whereas, dismissed the injunction application of appellant on extraneous consideration.
' The very premises of the claim of the appellant that the mark "BOL" is a registered trademark in its favour, rests on the presumption that in view of order passed by the learned Registrar, Trademarks on TM-16 filed by the appellant for the amendment of trademark i.e. 'Pakistan Idol" to "BOL", publication of advertisement in the official gazette, and issuance of certified extract of entry of register of trademark, from the office of Registrar of Trade Marks, is a prima facie proof of registration and ownership of trademark "BOL" in favour of the appellant. It has been further urged by the learned counsel for the appellant that the appellant has adopted and owns the trademark "BOL" in its favour prior to the claim of the respondent filed in the year 2013 only after the permission of amendment as per TM-16 from "Pakistan Idol" to "BOL" was granted by the Registrar of Trade Marks vide order dated 7-6-2013, whereafter, same was advertised in the official gazette, whereas, no objections were received within the stipulated time as provided under law.
9. From perusal of impugned order, it has been noted that the learned Single Judge while passing the impugned order has taken cognizance of all the factual and legal aspect which have been agitated before us by the learned counsel for the parties in the above terms, whereas, the learned Single Judge has recorded his finding on the relevant facts as well as the legal issues in the impugned order which we would discuss hereunder in order to examine the legality of such finding as recorded by the learned Single Judge while dismissing the injunction applications filed by the parties in the above suits. It will be advantageous to reproduce hereunder the relevant para: 18 of written statement filed on behalf of Registrar of Trade Marks, which reflects the official position relating to status of application of registration i.e. No.342080 and non-issuance of certificate of registration by the Registrar, Trade Marks in respect of trademark "BOL":- "18. That the contents of Para 18 of the [plaint] are admitted to the extent that application Nos.195773 and 238904 were advertised in the Trade Marks Journal. Furthermore application No.342080 is pending for registration. It is worth pointing out that for the above mentioned applications the [defendant] No.2 has not issued a certificate duly signed and stamped by the competent authority."
' In para: 10 of the impugned order, the learned Single Judge while examining the validity and scope of the certified copy purported to have been issued under sections 11 and 121(2) of the Trademarks Ordinance, 2001 read with Rule 84 by one Mrs. Nasreen Akhtar for Examiner of Trade marks issued on 30-11-2013 available at page:85 as Annexure 'C/10' of instant appeal has held as under:- "10. If the foregoing certificate is proper and valid, then it has the prima facie effect as just stated.
This is IMC's position. However, Axact submits that the certificate is a fabricated and manipulated document, and relies on the Written Statement filed by the official defendants. The relevant paragraph from the same has been reproduced (see para 6 above). 1 have considered the rival submissions. In my view, given that the certificate relied upon is not issued by the Registrar himself, the position adopted by the official defendants in the Written Statement must be given primacy. The position there is that no certificate "duly signed and stamped by the competent authority" has been issued. This statement has been repeated in para 28 of the Written Statement, where it is also stated that it is "imperative" to "highlight" this fact.
' The certificate must be issued by the Registrar or by an officer of the Registry authorized in terms of section 7(2). Mrs. Nasreen Akhtar was obviously not the Registrar and from what has been said in para 18 of the Written Statement, not authorized to issue the certificate. On any view of the matter therefore, the stance of the official defendants is clear: there is no certificate of, or evidencing, registration in the field as has, or can have, legal validity."
' From perusal of hereinabove finding as recorded by the learned Single Judge, and in view of admitted position that no certificate of registration has been issued or duly signed by the Registrar, Trade Marks in respect of trade mark "BOL" in favour of the appellant, which is duly supported by record of the Registrar of Trade Marks, we are of the opinion that such finding does not suffer from any error or illegality as is depicts the correct factual and legal position. Whereas, the appellant could not produce any material or evidence contrary to such factual or legal position as stated by the learned Single Judge in the impugned order. The claim of presumption by the appellant in view of purported certified copy of registration issued by one Mrs. Nasreen Akhtar for Examiner, Trade Marks in the instant case in terms of sections. 11 and 43 of the Trade Marks Ordinance, 2001 appears to be misconceived in fact and law, particularly in the absence of Registration of the Trade mark, and non-availability of the certificate of registration duly signed by the Registrar in terms of section 33 of the Ordinance, 2001. It may be clarified that such presumption would have been available to the appellant provided, the office of Registrar, Trade Marks would not have denied the actual fact of registration of trademark or issuance of trademark certificate duly signed by the Registrar in terms of section 33 of the Trade Marks Ordinance, 2001. Moreover, the documents filed by the appellant in support of their claim of trade mark are otherwise seriously disputed and an inquiry in this regard has also been conducted as per orders of the Court. We are in agreement with the finding as recorded by the learned Single Judge while declaring that in a suit for trademark infringement, the plaintiff must make out a prima facie case of being the registered proprietor or assignee etc. Thereof. However, since in the instant case, the appellant has not produced any certificate of registration duly signed by the Registrar in terms of section 33 of the Trade Marks Ordinance, 2001, and has merely placed reliance on the purported certified copy of A extract of Registration Certificate, which appears to have been issued by an unauthorized officer, which fact can be further verified from comments filed by the Registrar, Trade Marks in the instant case. In view of hereinabove facts and circumstances of the case, we are of the opinion that the appellant in the instant High Court appeal failed to establish a prima facie case in its favour as rightly held by the learned Single Judge in the impugned order. Moreover, it has also come on record that as per official data and the record of the Registrar, Trade Marks, the appellant did not apply for the trademark "BOL" while filing application No. 238904 for registration in the year 2004 and 2007, whereas, the same were made for registration of trademark "Pakistani Idol", which was amended from "Pakistani Idol" to "Pakistan Idol", thereafter show-cause notice dated 7-8-2008 was issued from the office of Registrar, Trade Marks and the matter remained pending for several years, however, on 7-6-2013, the appellant sought an amendment of his pending application by filing TM- 16, which was granted in the course of proceedings, whereafter, the trademark "BOL" appeared on the official record, which was though advertised, however, admittedly the trademark has not yet been registered as no certificate of registration has been either signed or issued by the Registrar, Trade marks. It has also come on record that the respondent filed objections within the permissible extended period and the matter is still pending before the Registrar, Trade Marks as per computer log supplied by the respondent(s). We may observe that, even, if the amendment sought by the appellant by filing TM-16 seeking amendment in the mark "Pakistan Idol" to "BOL" is granted by the Registrar in the normal course of proceedings, the same is. Not the conclusive evidence, and the same is subject to objections and further orders by the Registrar, Trade Marks, whereas, in the instant case, admittedly, the Registrar, Trade Marks has not issued the certificate of registration in terms of section 33 of the Ordinance, 2001. On the contrary, detail of log submitted before the Court reflects that the mark is still pending before the Registrar, Trade Marks. It has also come on record that the file has been reconstituted by the appellant on the ground that the official file was lost, whereas, an inquiry has also been ordered by the learned Single Judge to be conducted by the Registrar, Trade Marks with regard to seriously disputed facts as stated by the learned counsel for appellant in the suit and the injunction application filed by the appellant. In view of hereinabove facts and circumstances of the case, it can be safely concluded that the learned Single Judge was justified in law and facts by holding that the appellant has failed to make out a prima facie case for grant of injunction. We have also noted that the appellant has not been able to demonstrate that other two factors i.e. Balance of inconvenience and irreparable loss and injury are in favour of grant of injunction, whereas, more emphases was given to make an effort to establish a prima facie case. The appellant has not been able to demonstrate that the appellant has either adopted or using the trademark "BOL" prior to the claim of the respondent in this regard, nor it has been argued that the appellant has made huge investment in respect of trade mark "BOL" or has started any business in the name of trademark "BOL". The appellant could not establish either before the learned Single Judge or before us that if injunction is not granted in favour of the appellant, the appellant will suffer irreparable loss and injury, which would not be compensated in terms of money, nor it has been argued that the inconvenience, which the appellant will undergo from withholding the injunction, will be comparatively greater than, which is likely to arise from granting it. We are of the opinion that the appellant could not establish the three factors i.e. Prima facie case, balance of inconvenience, irreparable loss and injury in its favour, therefore, the appellant was not entitled to seek any discre tionary relief for grant of injunction; which has been rightly declined through impugned order by the learned Single Judge in the instant case. We may observe that while deciding an injunction application or hearing an appeal against such order, Courts are required to take into consideration three basic factors of injunction i.e. Prima facie case, balance of convenience and irreparable loss and injury, whereas no detailed examination of the evidence is to be made nor any final decision or finding is to be recorded with regard to authenticity of the claim of the contesting parties. We are also mindful of the legal position that a party who seeks injunctive relief during pendency of a suit for declaration and injunction, is required to make out a prima facie case on the strength of its own claim duly supported by the material, documents and the evidence, whereas, such relief cannot be claimed on the basis of weakness of the case of other party.
10. It is settle legal position that while determining the question of granting a temporary injunction following factors are required to be taken into consideration:- ' The prima facie existence of -a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of the applicant.
' That irreparable damage or injury will accrue to the applicant if the injunction is not granted.
' That the inconvenience which the applicant will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it, or in other words the balance of inconvenience should be in favour of the applicant.
11. While seeking a favourable injunctive relief the applicant is to prove the prima facie existence of the right claimed in the suit and also its infringement. But the mere fact that a prima facie case has been established will not entitle the applicant to an injunction unless the other two factors i.e. Balance of convenience and irreparable damage or injury, are fulfilled. The Court is required to balance the inconvenience and to see as to whether applicant will suffer more inconvenience by the withholding of the injunction than that which the respondent would suffer by granting of injunction. The Court is further required to weigh the mischief of either party in case of grant or refusal of the injunction. Normally the balance lies in favour of continuation of a state of things, such as to protect the possession of a party or to allow the continuance of a contract. Similarly, while granting injunction or otherwise it has to be ensured that the grant of injunction to one party may not cause irreparable damage or injury to the other party whose loss cannot be compensated in terms of money. Reliance in this regard can be placed in the case of Muhammad Saad and another v. Amna and 27 others 2015 YLR 1.
12. In the case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139, the Hon'ble Supreme Court while defining principles for grant or refusal of injunction has held as follows:- "The well-settled principle for the grant or refusal of temporary injunctions are, firstly, whether the plaintiff had a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff would suffer, irreparable loss if the injunction is refused."
13. In the case of Abdul Ghafoor Memon v. Muhammad and another PLD 1975 Karachi 464, learned Judge of this Court while placing reliance on the judgment of the Hon'ble Supreme Court (supra) and while defining the scope of injunction under Order XXXIX, Rules 1 and 2, C.P.C. Has held as under: "It is the essence of all interim relief that the action in which it is claimed should be brought without unnecessary delay. In the instant case the encroachment in question took place on or about the 24th of September 1970, and it was not till about six months later that the action challenging it was, brought by petitioner. The petitioner, has, therefore, forfeited his right to interim relief by this unexplained delay and during this period the building of the respondent was allowed to reach in an advance stage of construction."
14. In the case of Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCM R 519, the Hon'ble Supreme Court while defining the scope of injunction in terms of Order XXXIX, Rules 1 and 2, C.P.C.
Has held as follows:-- "We are unable to agree with this contention, for, the trial Court had clearly not taken into account the question of balance of convenience or irreparable loss but based its decision purely upon its finding that the impugned resolution was bad in the eye of the law. An injunction is not to be granted only on the basis that a prima facie case exists but it is incumbent upon the Court to take into account the other questions.
' The first is that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case, the application for ad interim injunction should have failed on this ground alone."
15. In the case of Pervaiz Hussain and another v. Arabian Sea Enterprises Limited SBLR 2006 SC 3, it has been held as under: "8. However, we are of the view that since the suit is pending between the parties and as the dispute i.e. The status of the parties, is yet to be determined in the suit, therefore, we should be careful in making any observations on merits of the case. We are also of the view that on having come to the conclusion that there was no sufficient material on the record to give any prima facie finding about the status of the parties, the learned Division Bench of the High Court ought to have set aside the impugned injunctive order because this conclusion in itself disclosed that plaintiff had failed to make out a prima facie case as it had failed to prima facie establish before the Hon'ble Judges that the petitioners were licensees. Thus, in such a circumstances, the balance of inconvenience, because of the stoppage of business, was in favour of the petitioners and in such a situation, in our view, the learned Division Bench of the High Court erred in directing the parties to maintain status quo other than status quo ante."
' Needless to mention that the case-law as referred by learned counsel for the appellant is of no assistance to the appellants, as the facts of the instant case are entirely distinguishable from the facts of the cited case-law. We have restrained ourselves from recording any finding as to the effect of inquiry, which has been duly concluded by the Registrar of Trade Marks on the directions of the learned Single Judge, as it may adversely affect the merits of the case, which will be examined by the learned Single Judge while recording the evidence of the parties in the above Suits. However, we may observe that the learned Single Judge may decide both the Suits on the basis of evidence and material produced by the parties without being entangled in the inquiry proceedings initiated by the Registrar, and shall take cognizance of such material which may be relevant for the purposes of deciding the controversy relating to determination of any right or entitlement of parties in respect of trademark "BOL".
16. Keeping in view hereinabove facts and circumstances of the instant case and the ratio of the aforesaid judgments, we are of the opinion that the learned Single Judge vide impugned order has rightly declined the injunctive relief sought by the appellant as it could not make out a prima facie case for seeking discretionary relief in its favour. Moreover, none of the factors which are required to be taken into consideration for grant of an injunction application were in favour of the appellant.
17. The conclusion drawn by the learned Single Judge under the circumstances does not suffer from any error or illegality, hence does not require any interference by this Court. Accordingly, we do not find any merits in the instant High Court Appeal, which is hereby dismissed.