ZAFAR AHMED RAJPUT, J.---This Intra High Court Appeal under section 15 of the Civil Procedure Code Amendment Ordinance, 1980 read with section 3 of the Law Reforms Ordinance, 1972 is directed against the order dated 21.01.2015, passed in Suit No.1140 of 2014, whereby C.M.A. No. 9196/2014, filed by the respondent/plaintiff, under section 94, C.P.C. read with Order XXXIX, Rules 1 and 2, C..P.C. and section 151, C.P.C., was allowed by the learned Single Judge of this Court, restraining the appellant/defendant from using trademark "Hajmola" and/ or any variations thereof, whether with or without any additions, or any mark deceptively similar to the same, as infringes upon the plaintiff's registered trademark No. 78160.
2. Briefly stated, facts of the case are that the respondent/plaintiff filed a Suit being No. 1140 of 2014 against the appellant/defendant for permanent injunction, damages and rendition of accounts for infringement, passing off and unfair competition under Trade Marks Ordinance, 2001 (the "Ordinance, 2001"). The respondent/plaintiff is a private limited company incorporated under the Companies Ordinance, 1984, earlier named Hilal Confectionery and now known as Hilal Foods ("Hilal"). The person through and under whom the appellant/defendant claims, an Indian company by name Dabur India Ltd. ("Dabur") are already in litigation in this Court under Suit No. 14 of 1995, filed by Dabur against Hilal for passing off, which is still pending adjudication. In that suit, Dabur sought interim relief, which was granted as prayed by a learned Single Judge, vide order dated 21.5.1999. Against that order, Hilal preferred High Court Appeal No. 275 of 1999, which is also pending adjudication. On 11.04.2000 the appeal was admitted to regular hearing and the order made by the learned Single Judge was modified to a certain extent. The trademark over which Hilal and Dabur are in dispute is "Hajmola". The goods, which each claims it has the right to sell under the trademark fall in classes 5 and 30 of the international classification of goods. Hilal; however, claims that it is the owner by way of an assignment registered on 30:11.1995 from the proprietor.
(M/s. Khamisani Sons Agencies Supplies) of "Hajmola" as a registered trademark in class 5, being registration No. 78160, under goods description "Unani Medicines". This registration is as of 4.11.1982.
Dabur has challenged this registration in J.M No. 58/1997, which is also still pending adjudication.
3. The respondent/plaintiff also moved an application in the afore-mentioned suit being C.M.A.
No.9196/2014 seeking interim injunctive relief by restraining the appellant/defendants, their agent, etc. from infringing and/or from passing off and/or from unfair competition by using/manufacturing/distribution/ marketing/sale or offering for sale their goods by using the imitated trademark "Hajmola" and from any other trademark deceptively similar and/or having near resemblance to that of the respondent/plaintiff in any manner whatsoever till disposal of the suit. The learned Single Judge vide order dated 21.1.2015 allowed the said C.M.A. Aggrieved by the said order, the appellant/defendant has preferred this High Court Appeal.
4. Heard the learned counsel for the parties and perused the material available on record.
5. Mr. Muhammad Fazil Bharucha, learned counsel for the appellant, contended that the appellant is an authorized user of trademarks of Dabur, through Dabur International Limited, and Dabur is the proprietor of the trademark "Hajmola" in relation to ayurvedic digestive churan tablets, which is registered in favour of Dabur in India under No. 281856 in Class 5 as of 2nd August, 1972 and in U.K. under No.1132282 in Class 5 as of 18th April 1980. He further contended that Dabur adopted some artistic works with "Hajmola", which works, being original artistic works, are protected in all Berne Convention member countries which include Pakistan by virtue of section 54 of the Copyright Ordinance, 1962; hence any person who reproduces in a material form, publishes, copies or counterfeits the said original Dabur's Hajmola labels, without the authorization and license of Dabur, would commit infringement of Dabur's Copyright in its "Hajmola" labels. He also contended that the respondent dishonestly adopted the trademark "Hajmola" and also started infringing "Hajmola" labels of Dabur in Pakistan; therefore, in order to restrain the respondent from infringing "Hajmola" labels, Dabur filed Suit No. 14 of 1995 against the respondent, titled Dabur India Limited v.
Hilal Confectionery, which is pending adjudication in this Court, wherein on 21.05.1999 a learned Single Judge of this Court allowed the injunction application whereby the respondent was restrained from infringing "Hajmola" labels of Dabur; the respondent, being aggrieved, filed High Court Appeal No. 275 of 1999, and the learned Division Bench of this Court, vide order, dated 11.04.2000 modified the said order to the extent that the respondent would be entitled to sell their products under the brand name "Hajmola" and Dabur shall have the right to use label "Hajmola" on their products, but the same would not be used by the respondent on their label.
6. Mr. Bharucha maintained that since the appellant is authorized by the Dabur through Dabur International Limited, as such, in view of the order passed in the High Court Appeal No.275/1999, it is legally entitled to market the products of Dabur, while the registration of the trademark "Hajmola" under No. 78160 in Class 5 for "Unani medicine" was obtained by a partnership concern i.e. M/s. Khamisani Sons Agencies Supplies on 04.11.1982, which was secured by the respondent on 06.08.1995 by way of alleged assignment, has been challenged by Dabur under J.M No.58/1997, and the same is also pending adjudication in this Court. He further maintained that the respondent has no proprietary rights in the trademark "Hajmola" as it has been obtained by the respondent after institution of Suit No.14 of 1995 by Dabur, who is the real owner of the artistic works, containing the word "Hajmola" with special script of letters and got registered as Copyright in India.
7. Mr. Bharucha also maintained that the impugned order is based on misleading of pleadings and misinterpretation of the provisions of applicable law and rules and thus the same is illegal, unlawful, ultra vires, perverse, erroneous and of no legal effect. He added that the learned Single Judge of this Court while passing the impugned order ignored the object of the Ordinance, 20001 with regard to authorized user, which means a person authorized to use a trademark in relation to the goods or services under the control of the owner of the trademark and includes a licensee and the learned Single Judge of this Court ignored the provisions of Section 2(iii) of the Ordinance, 2001.
He also added that the learned single Judge of this Court has wrongly held that the appellant is an infringe within the meaning of Section 40(8) of the Ordinance, 2001 and failed to consider the packaging/labels, bearing the name of Dabur, placed before him and letter of confirmation/letter of authorization as sufficient evidence to use the trademark "Hajmola" by the appellant.
8. Conversely, Mr. Muhammad Akram, the learned counsel for the respondent supported the impugned order and contended that the respondent is engaged in business as manufacturer and merchant of a wide range of sweet, bakery, and confectionery products including digestive tablets and other allied products falling in class 5- and 30 of the international classification of goods and have been marketing and selling products since 1957 throughout Pakistan and in order to distinguish its products from other manufacturers and merchants in the same line of business and to protect the valuable proprietary rights in the said popular brand "Hajmola" the respondent secured registration of the trademark "Hajmola" under registration No.78160 dated 04.11.1982 and the said registration is valid and intact till date for all intent and purposes. He further contended that since the respondent and the appellant are carrying on similar competing businesses, therefore, any sale, distribution, marketing and offering for sale of the imitated and infringed products by the appellant under the trademark "Hajmola" in any manner whatsoever shall be an act of infringement of respondent's exclusive proprietary rights, exploiting the fair competition and honest business practice for that the appellant is liable to be restrained under the law there from.
He also maintained that the unauthorized use of trademark "Hajmola" and distribution of imitated/infringed products by the appellant has already caused substantial loss of business and loss of opportunity to the respondent and in the event that the appellant is not restrained at this juncture from the illegal acts, the exclusive vested rights of the respondent in respect of the said trademark "Hajmola" shall diminish or dilute and that will cause irreparable loss to respondent in monetary terms. He added that the respondent is the registered proprietor/owner of trademark "Hajmola" in Class 5, which registration is valid and intact since 1982 under the law. Likewise, respondent is the prior adopter/ applicant/owner of trademark "Hajmola" in Pakistan as such enjoys exclusive rights in respect thereof.
9. We have given due considerations to the contentions of learned counsel for the parties.
10. Intellectual property is a term referring to creations of the intellect for which a monopoly is assigned to designated owners by law. Intellectual property rights include patents, copyright, industrial design rights, trade marks, plant variety rights and trade dress. A trade mark in its literal meaning is a recognizable sign, design or expression, which distinguishes products or services of a particular trader from the similar products or services of other traders. Term "trade mark" is defined under section 2(xlvii) of the Ordinance, 2001 as "any mark capable of being represented graphically which is capable of distinguishing goods or services of one undertaking from those of other undertakings". Under Section 39(1) and (2) ibid, a registered trade mark is the personal property of the proprietor, who has excessive rights in the trade mark which are infringed by use of the mark in Pakistan without his consent. Section 2(iii) ibid; however defines the term "authorized user" as "a person authorized to use a trade mark in relation to goods or services under the control of the owner of the trade mark and includes a licensee." While section 2(xxxi) ibid; defines the term "permitted use" in relation to trade mark as "the use of the trade mark by an authorized user".
' The trade mark infringement occurs when one party uses a trade mark that is identical or confusing similar to a trade mark owned by another party, in relation to products or services which are identical or similar to the products or services of the party. Infringement of a registered trade mark can be addressed by civil litigation and, in several jurisdiction, under criminal law.
Section 40 of the Ordinance, 2001 provides "a person shall infringe a registered trade mark if such person uses in the course of trade a mark which is identical with the trade mark in relation to goods or services which are identical with those for which it is registered." Section 46(2) ibid provides in case of an action for infringement " all such reliefs by way of damages, injunctions, accounts or otherwise shall be available to the proprietor of the trade mark as is available in respect of the infringement of any other property right."
11. In the instant case, what has emerged from the pleadings of the appellant/defendant is that it claims to be the sub-licensee of Dabur, through Dabur International Limited, but the appellant has failed to produce any valid license agreement from Dabur International/and or Dabur India Ltd. The only material in this regard that is available on the record is a letter dated 08.08.2012, titled as Letter of Confirmation/Letter of Authorization, signed by Mr. Dinesh Shah, who is described as Dabur's "Head-Legal" and "Authorized Signatory", on behalf of Dabur India Ltd., under Board of Directors Resolution dated 31.01.2012, the copy thereof also annexed thereto. We have cautiously examined the said letter. Its relevant para No. 11 and resolution read, as under: Letter
11. By virtue of the authority granted, Dabur International Limited has licensed Asian Consumer Care to do the following acts and deeds on behalf of Dabur in Pakistan: a. To enter into, make, execute all agreements, with any manufacturer(s) for manufacturing of our products under the trademark Hajmola, i.e. Hajmola Candy in different favours and/or with different words togather with the word "Hajmola"; b. To import and keep the raw materials required for manufacturing of the product under the trademark Hajmola i.e. Hajmola Candy in different flavors and/or with different words to gather with the word "Hajmola" candy, in its custody and supply to the manufacturer(s) according to the agreement; c. To import, market/sell products of Dabur bearing the trademark Hajmola; and d. To appoint distributors/wholesalers/retailors to sell the products under the trademark Hajmola and enter onto agreement with them.
' Resolution ' CERTIFITED TRUE COPY OF THE RESOLUTION PASSED BY THE BOARD OF DIRECTORS OF THE COMPANY IN ITS MEETING HELD ON 23.01.2012.
"RESOLVED THAT in supersession of all earlier resolutions passed in this regard, Mr. P D Narang, Group Director-Corporate Affairs, Mr. A K Jain, Sr. General Manager (Finance) a Company Secretary, Mr. A. K. Sharma and Mr. B. K. Gupta, Dy. General Managers, Mr. Parveen Mudgal, Jt.
Company Secretary, Mrs. Santa Agarwal, Manager (Secretarial), Mr. Himanshu Bhatia, Dy. Manager (Legal), Mr. Dinesh Shah, Head-Legal, Mr. Alok Seth and Mr. I Dasgupta, Authorized Representatives of the Company be and are hereby authorized severally to file any suit or refer any 'matter to Arbitration or file a Company Petition under the provisions of Company Act, 1956 or file any other legal proceedings or file an FIR/any other report with police/other authority/ies on behalf of the Company including any Criminal Complaint etc. or defend any legal proceedings against the Company and to represent the Company in all proceedings before any court, arbitrator, Company Law Board, Police Authorities or any other judicial/quasi-judicial authority/other authority and give evidence on behalf of the Company."
"RESOLVED FURTHER THAT Mr. P. D. Narang, Group Director-Corporate Affairs, Mr. A. K. Jain, Sr. General Manager (Finance) and Company Secretary, Mr. A. K. Sharma and Mr. B. K. Gupta, Dy. General Managers, Mr. Parveen Mugal, it. Company Secretary, Mrs. Santa Agarwal, Manager (Secretarial), Mr. Himanshu Bhatia, Dy. Manager (Legal), Mr. Dinesh Shah, Head-Legal, Mr. Alok Seth and Mr. I Dasgupta, Authorized Representatives of the Company be and are hereby also authorized severally to take all such steps including appointment of advocates, signing of papers, applications, plaints, petitions, vakalatnamas and all other documents as well as affidavits and represent the Company in all others matters incidental thereto as may be considered necessary and expedient for such cases."
"RESOLVED FURTHER THAT Mr. P D Narang, Group Director-Corporate Affairs, Mr. A K Jain, Sr. General Manager (Finance) and Company Secretary, Mr. A K Sharma a Mr. B K Gupta, Dy. General Managers, Mr. Parveen Mudgal, it. Company Secretary, Mrs. Santa Agarwal, Manager (Secretarial), Mr. Himanshu Bhatia, Dy. Manager (Legal), Mr. Alok Seth, Mr. Dinesh Shah and Mr. I Dasgupta, Authorized Representatives of the Company be and are hereby also authorized severally to designate any or all the aforesaid powers to any of the executive of the Company or to any other person and generally to do all acts, deeds, things and matters as may be necessary in this connection."
' -the certified true copy of the resolution may be issued under the signatures of any one of Mr. Ashok Kr Jain, Sr. General Manager-Finance and Company Secretary, Mr. Parveen Mudgal, Jt.
Company Secretary and Mrs. Santa Agarwal, Manager-Secretarial."
Certified True Copy For DABUR INDIA LTD.
Sd/- Sarita Agarwal Manager-Secretarial
12. It may be observed, from a plain reading of the afore-mentioned resolution, that it authorizes various persons to do various acts, essentially of a legal nature or relating to such affairs, including the authority to represent Dabur in all proceedings before the courts. But by no stretch of imagination it authorizes any of the authorized persons to delegate such authority to appellant as enunciated in para 11 of the letter of authorization. The contents of a resolution of a company are strictly construed and no power or authorization should be made into the same which is not expressly set out therein as articulated by the maxim "Potestas atricle interpreter" (A power should be strictly interpreted). Therefore, Mr. Dinesh Shah, the Head Legal of Dabur cannot delegate the authority to appellant that has not been delegated to him by the Dabur. It is therefore, the learned Single Judge of this Court, in our view, has rightly held the said letter in the impugned order as merely a descriptive letter, which does not even give any dates as to when the relevant relationship/arrangement came in to existence between the appellant and Dabur, which is simply not enough to consider the former as sub-licensee of the latter. As such the appellant cannot be termed as an "Authorized user" for the use of trade mark "Hajmola" as "permitted use" as defined in Section 2(iii) and (xxxi) of the Ordinance, 2001. Respondent, thus, prima facie has succeeded to establish its case for the purpose of interim injunctive relief.
13. For the foregoing facts and reasons, we do not find any merit in the instant Intra High Appeal; therefore, the same dismissed, along with pending application, with no order as to costs. However, the appellant shall free to move application before the learned Single Judge to establish that it has acquired right from Dabur India to sell or manufacture its products in Pakistan.
14. Above are the reasons of our short order dated 14.04.2015 by which we had dismissed this High Court Appeal. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.