' MUHAMMAD FARRUKH IRFAN KHAN, J. --- In this appeal, the appellant has challenged the order dated 09.02.2015 whereby the learned Additional District Judge, Sheikhupura has dismissed his application for grant of temporary injunction under Order XXXIX, Rules 1 and 2 of CPC.
2. Learned counsel for the appellant submits that the impugned order is bad in law as the learned Additional District Judge has not given due credence to the registration of the appellant's trademark.
3. While learned counsel for the respondent s'ibmits that the order of the learned Additional District Judge is in accordance with law as the appellant does not have any exclusive right on the use of word "MAKKHAN" which the appellant himself disclaimed while obtaining Registration No. 247678 in Class 30, he further submits that the appellant and the respondent are real brothers and prior to undertaking separate businesses they have been working together under the same name & style and using the same trademark "MAKKHAN". He adds that the appellant, being a brother, was looking after the sales counter and other outdoor business affairs and as such, he has illegally registered the trademark in his sole name whereas the address given on the trademark certificate "Saiah-ud-Din Road Sheikhupura" belongs to the respondent, who was undertaking the backend part i.e. Manufacturing of the goods for the business.
4. I have heard the arguments and perused the record.
5. In a suit for permanent injunction and damages for infringement of a trademark, which is accompanied by an application under Order XXXIX, Rules 1 and 2 of CPC the duty cast upon the learned Trial Court is to consider as to which of the two contesting parties has a prima-facie case alongwith balance of convenience and as to who will suffer an irreparable loss if injunction is granted or denied. Perusal of the record shows that the Trademark Registration No. 247678, dated 13.03.2008, in Class 30 in respect of sweets in the name of the appellant has been registered with the following
8. In view of the peculiar facts of the controversy in hand, it will have to be decided finally after recording of evidence, therefore, adjudication on the application FAO No. 73 of 2015 under Order"
XXXIX, Rules 1 and 2 of CPC and observations made herein, will not have any effect on the final outcome of the suit pending between the parties which will obviously be decided on merit.
9. The appellant has failed to show that he has a prima facie case and the balance of convenience is also in his favour and that he will suffer an irreparable loss by the continuation of business by the respondent by selling goods under the word "MAKKHAN" considering what has been stated above.
In view of the aforesaid findings, the order dated 09.02.2015, passed by the learned Additional District Judge, is within its legal boundary and this Court finds no occasion to interfere therein.
Appeal is dismissed.