1. This application has been filed under section 46 of the Trade Marks Act, 1940, for cancellation of the entries existing on the Register of Trade Marks relating to the word "QADRI' registered under No. 65875 on 28-6-1977.
2. Briefly the facts are that the respondent No. 1 filed two applications in the Trade Marks Office, Karachi bearing Nos. 59662 and 60052. These applications were for registration of trade marks each mainly comprising of the word "QADRI". These applications were advertised in the Trade Marks Journal for the months of November and December, 1977. The applicant accordingly filed opposition against each of the applications. After hearing, the Assistant Registrar, Trade Marks, passed order dated 5th July, 1978, disposing of the Application No. 59662 and held that none of the parties could prove proprietorship to the word "QADRI" and kept this ques--tion open for decision by the civil Court. No appeal was filed by any party. Application No. 60052 was also disposed of by a similar order of the Deputy Registrar and the respondent has filed an appeal being Miscellaneous Appeal No. 76/78. The learned counsel for the applicant has made a statement at the bar that this appeal is pending which has not been denied by the learned counsel for the respondent No. 1.
3. On 28-6-1977 the respondent filed a third Application No. 65875 in clause 3 in respect of hair oil for registration of the word "QADRI". The application was advertised in the Trade Marks Journal dated 1- 10-1979 which was out from the Press on 3-1(1-1979. In the advertisement published in the Trade Marks Journal No. 344 of Ist September, 1979, the word "QADRI" looked like the word "DADRI". The application had been filed on 28-6-1977, published on 3-10-1979, and the ceiling dated was fixed as 15-1-1980. The objection should have been filed within two months from the date of publica--tion, namely, 3-10-1979. However the applicant did not file any objection to it and it was registered in the name of the respondent No. 1.
4. The main contention of the applicant is that before granting registration the Registrar should have issued a notice under rule 23 and for this purpose he has relied on PLD 1973 Kar. 279. Rule 23 provides that on receipt of an application for registration the Registrar shall cause a search to be made amongst the registered trade marks and amongst the pending applica--tions for the purpose of ascertaining whether there are on record in respect of the same goods or description of goods any marks identical with the marks sought to be registered. While interpreting rule 23 it was held in PLD 1973 Kar. 279, that "it is implicit in this rule that a notice shall be sent to all the owners of the registered trade mark or applicants whose applications are pending for registration with whom the proposed mark resembles or is likely to cause deception".
5. Mr. Shaukat Ali the learned counsel for the applicant has contended that the matter was hotly contested between the parties inasmuch as, besides the aforesaid three contested applications, in Application No. 66496 and 66780 in clause (3) made by the respondent No. 1, she had made a disclaimer for the word "QADRI". It was therefore incumbent on the Registrar to have issued a notice to the applicant.
6. Mr. Mansoori the learned counsel for the respondent No. 1 (the respon--dent No. 2 is ex parte) has contended that as all previous applications for registration had been disposed of and there was no applications for registra--tion had been disposed of and there was no application pending before the Registrar nor the mark had been registered it was not necessary for the Registrar to have issued a notice. He has further contended that the diselamer was wade at a time when the user of the word "QADRI" had not completed 6 years and since at the time of filing Application No. 65875 the respondent No. 1 had completed user of six years she was entitled to its registration.
7. At this stage it would not be proper to enter into the merits and demerits of the case. It is correct that the applications had been disposed of by the Registrar whereby he had directed the parties to get the question relating to proprietorship determined by the civil Court but none of the parties had approached the civil Court for this purpose. However in Application No. 60052 it is an admitted position that the respondent No. 1 has filed Miscellaneous Appeal which is still pending in this Court.
8. In view of this fact it cannot be contended that the Application No..60052 has been disposed of and therefore rule 23 did not apply. The very fact that appeal has been filed and is pending leave the entire question open and the proceedings hav , not terminated or finally disposed of. Applying the principles laid down in PLD 1973 Kar. 279 the Registrar should have issued a notice to the Applicant No. 1 before granting any registration. Rule 23 is mandatory in nature and does not allow any discretion in this regard to be exercised F by the Registrar is bound to make a search and issue a notice as provided under the rules. Any non-compliance of the rules makes an aggrieved party entitled to invoke section 46 or such provision by which the registration can be challenged.
9. Besides this, it may be noticed that in the Trade Marks Journal No. 344 the word "Qadri" for which the application had been filed seems to have been published as "DADRI". The manner in which it has been published, prim ,facie, a person can be misled to read the letter "Q" as "D" This is a clear mistake on the part of the Registry to have published in an incorrect manner which is likely to create confusion in the mind of the objector treating it to be as "DADRI". It is possible that one may not object to "DADRI" but may have serious objection to the word "QADRI". No party should suffer due to the mistake of any Court or office and no one can be allowed to take advantage of such a mistake. The publication is meant as a public notice inviting objections and if the very word required to be registered is not correctly published or there is mistake in it the very object of the publication will be frustrated. In these circumstances the grant of registration of the word "QADRI" is not valid and proper. I, therefore grant the application. The procedure followed by the Trade Marks Registry was irregular, calculated to cause prejudice to the applicant.
10. The case will go back to the Trade Marks Registry and the Registrar shall issue a notice to the applicant whereupon the applicant should file his opposition and that the Registrar will decide according to law.
11. The parties to bear their own costs.