KAUSAR SULTANA HUSSAIN, J.---By this common judgment I intend to dispose of all the above mentioned appeals preferred against the decision(s) passed by the learned Registrar of Trade Marks, Karachi.
2. Succinct the case of the appellant is that they filed applications before Registrar Trade Marks in accordance with the provisions of Trade Marks Act, 1940 and the Rules framed in pursuant to such Act, referred as Revised Trade Marks Rules, 1963, such application were submitted prior to 12.04.2004 which is the date of coming into force of Trade Marks Ordinance 2001, which was though promulgated on 14.04.2001, however in terms of section 1(3), the Ordinance had to take effect from a date to be notified in Official Gazette as reproduced below:-
(1) SHORT TITLE, EXTENT AND COMMENCEMENT.
(i) This Ordinance may be called the Trade Marks Ordnance, 2001.
(ii) It extends to the whole of Pakistan.
(iii) This section and section 132 shall come into force at once and the remaining provisions of the Ordinance shall come into force on such date as the Federal Government may, by notification in the Official Gazette, appoint in this behalf.
3. Accordingly Trade Marks Act 1940 hereinafter referred to as "Old Law" continue to hold field till the enforcement of Trade Marks Ordinance 2001 hereinafter referred to as "New Law", similarly Trade Marks Rules 2004 also enforced from the same day viz. 12.04.2004. The contention of the appellant before the Registrar was that under the "old law" the right of opposition as well as procedure and limitation for opposition were governed by the provision of section 15(2) of "Old Law" read with Rules 30 and 76 of the Revised Trade Mark Rules, 1963 (opposition within a period of two month plus six month extension, total eight months). Whereas under the "new law", the procedure and time limitation for opposition is governed by the provision of section 28(2) read with Rule 30 of Trade Marks Rules, 2004, (opposition within two months plus two months extention). It was agitated that in view of Article 10(1) of the schedule having enacted under section 133 of "New Law", the rules applicable in completing the process of opposition proceeding would be Revised Trade Marks Rules, 1963 and the time period in which party is required to complete the proceedings would be calculated in accordance with these rules and not under Trade Marks Rules, 2004.
4. The learned Registrar after due deliberations passed Decision whereby all such applications were dismissed. The operative part of such decision is as under: "that so far as the procedure applicable in respect of pending applications filed for registration of Trade Marks under the old Law i.e. Trade Marks Act, 1940 and are advertised in the Trade Marks Journal published after coming into effect of New Rules i.e. after 12.04.2004, the New Rule will be applicable and the extension of time can be obtained for two months in aggregate only as provided under Rule 30. Accordingly, in exercise of my powers under the Ordinance, I hereby disallow all the extension of time applications beyond the statutory further period of two months as provided in Rule 30. If any Notice of Opposition is filed accordingly within the stipulated period that may be served to other side after bringing the same on Record and in other cases the Notice of opposition be treated as time barred and accordingly dismissed. The applications under such oppositions may be released to proceed to registration after expiry of the statutory appeal period.
Similarly, if any Counter Statement filed accordingly within the stipulated period that may be served to the other side after bringing the same on record and in other cases Applications be treated as abandoned".
5. I have heard the learned counsels appearing on behalf of appellants as well as Respondents and also considered material available in case files. The main controversy is that whether Trade Marks Rules, 2004 are applicable or Revised Trade Marks Rules, 1963 shall apply to pending applications filed for Registration of Trade Marks under the "Old Law" and/or advertised in "Trade Marks Journal" published after coming into effect of New Rules 2004.
6. Section 133 of Trade Marks Ordinance,' 2004 envisage the "Transition Mechanism" which is re- produced as under:-
133. TRANSITIONAL. The provisions of the Fourth Schedule shall have effect with respect to transitional matters, including the treatment of trade marks registered under the Trade Marks Act, 1940 (V of 1940), and applications for registration and other proceedings pending under that Act, on the commencement of this Ordinance.
7. Article 10(1) of the fourth Schedule is also reproduced for ready reference.
PENDING APPLICATIONS FOR REGISTRATION. (1) An application for registration of a mark under the 1940 Act which is advertised under subsection (1) of section 15 or the proviso for that subsection of the 1940 Act, or an order has been made for its advertisement before the commencement of this Ordinance shall be dealt with under the Old Law, subject as provided in the following paras, and if registered, that mark shall be treated for the purpose of this schedule as an existing registered trade mark."
8. From bare reading of substance of section 133, it transpires that the said section read with Article 10 of fourth schedule provide a mechanism, whereby transitional matters are to be governed.
Article 10(1) of fourth schedule stipulates that an application for registration of a mark under "Old Law" which advertised under subsection (1) of section 15 or the proviso of that subsection or order has been made for its advertisement before the commencement of new law shall be dealt with under the Old Law. The word "Shall" signifies that in the matter of applications referred to above, the applicant has no discretion and the application so made have to follow "old law".
9. However Article 11 of fourth schedule specifically deals with the conversion of pending application for registration which have not been advertised under subsection (1) of section 15 or the proviso to that subsection neither an order has been made for such advertisement before the commencement of new law. For ready reference, Article 11 of fourth schedule of "new law" and relevant entry in second schedule of Trade Mark Rules, 2004 is reproduced below:- CONVERSION OF PENDING APPLICATION ARTICLE 11.
(1) In the case of pending application for registration which has not been advertised under subsection (1) of section 15, or the proviso to that subsection of the 1940 Act, neither an order has been made for such advertisement being the commencement of this Ordinance, the applicant may give notice to the Registrar claiming to have the registerability of the mark determined in accordance with the provisions of this Ordinance.
(2) The notice under sub-para (1) shall be in the prescribed form, be accompanied by the appropriate fee and be given not later than twelve months after the commencement of this Ordinance.
(3) The notice under sub-para (1), duly given shall be irrevocable and have the effect that the application shall be treated as if made immediately after the commencement of this Ordinance.
Entry as to Form Trade Mark 44 of second schedule (list of forms) of Trade Marks Rules, 2004 is copied as under:- TM- 44paragraph 11 of the fourth schedule to OrdinanceClaim to have the registerability of the mark applied for before commencement of the Ordinance determination accordance with the Provision of the Ordinance (Conversion of application) Paragraph 11 of the Fourth Schedule to the Ordinance Needless to emphasizes that schedu es to statutes are the integral part of relevant statute and have the same force as any part of the statute.
10. Now I will dilate upon Rule 134 of the Trade Mark Rules 2004, Sub-Rule (2) whereof is the basis of the decision of learned Registrar. Conversely appellants also put their much emphasizes on the interpretation of said Rule Rule 134 of the Trade Mark Rules, 2004 is re-produced below for ready reference:-
134. FORM FOR CONVERSION OF PENDING APPLICATION.
(i) A notice to the Registrar urder paragraph 11 of the Fourth Schedule to the Ordinance; claiming to have the registerability of the mark determined in accordance with the provision of the Ordinance, shall be in the form as set out in Form TM-44.
(ii) Where an application for registration of trade mark made under the old law is advertised on or after these rules comes into force, the period within which notice of opposition may be filed shall be governed under these rules and not under rules hereby repealed.
11. In my humble view, headings in a statute or Rule may be taken into account to ascertain true sense and correct meaning of the provisions contained thereunder when they appear self- conflicting or ambiguous. Increased clarity in such cases may also be construed when every provision under a specific heading or sub-heading as the case may be, is read in conjunction with such heading or sub-heading. In Legal Dictionary the word "heading" is defined as a "words prefaced to the start of sections of Acts of Parliament. These may be utilized in statutory interpretation".
In the instant case it is apparent that heading is given to whole section comprising of two subsections, if the intention of Rule making authority would have otherwise, Sub-Rule (2) of Rule 134 may have given separate Section number or separate Heading. The said narration also got strength from Rule 135 as reproduced hereunder:-
135. REPEAL AND SAVINGS.
(i) The Revised Trade Marks Rules, 1963 are hereby repealed.
(ii), Except as provided by these rules, anything done, any action taken, any proceedings commenced or any order made under or in pursuance of the Revised Trade Marks Rules, 1963, shall be deemed to have been done, taken, commenced or made under or in pursuance of these rules.
(iii) Except as provided under rule 134, where--
(a) immediately before these rules come into force, any, time or period prescribed by the Revised Trade Marks Rules, 1963, has effect in relation to any act or Proceedings and has not expired; and
(b) The corresponding time or period prescribed by these rules would have expired or would expire earlier, the time or period prescribed by the Revised Trade Marks Rules, 1963, and not by these rules, shall apply to that act or proceedings.
12. Above reading of Rule 134- read with Rule 135(b) depicts that Rule 134(2) is applicable to such applications which have been converted in accordance with Article 11 of fourth schedule of "new law" and not to applications which are covered by Article 10 of fourth schedule to "New Law". It is also important to, note that Article 1(c) of fourth schedule of Ordinance 2001 defines the term "Old Law" as under:-
1. INTRODUCTORY (1) In this schedule (c)
"Old Law" means the 1940 Act and any law for the time being in force applying to existing registered marks immediately before the commencement of this Ordinance.
The word "Old 'Law" is also defined in Trade Marks Rules 2004 in the following manner:-
2. DEFINITIONS (1) In these rules, unless there is anything repugnant in the subject or context:-
(c) "Old Law" means the Trade Marks Act, 1940 (V of 1940), and rules made thereunder as in force immediately before the commencement of the Ordinance.
To further clarify the instance whether law include Rules or otherwise reference to subsection 37(b) of section 3 of General Act, 1897 is necessary as reproduced below:-
3. DEFINITIONS.
(37b) "Pakistan Law" Pakistan law shall mean any Act, Ordinance Regulation, rule, order, bye-law or any other instruments which has or had the force of law in Pakistan or any part thereof; but does not include an Act of Parliament of the United Kingdom or any Order-in-Council, rule or other instrument made thereunder; 13.From above discussion, it is evident that "Old Law" i.e. Trade Marks Act, 1940 also include the "Rules repealed" viz Revised Trade Mark Rules, 1963. Further more from Article 1(c) of the fourth schedule of Ordinance 2001, Rule 1(c) of Trade Mark Rules 2004 and section 3(37b) of General Clauses Act 1897, an inference can be drawn that "Old Law" includes the "old rules" viz Revised Trade Marks Rules, 1963.
14. Section 6 of General Clauses Act, 1897 also throw light on effect of repeal; relevant portion of the same is transcribed as under:- EFFECT OF REPEAL:- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then unless a different intention appears, the repeal shall not:-
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or In the above proposition, reliance is placed on 2012 MLD 1635. It was held:- "Rights accrued to a party before amendment of law could not be taken away. Substantial law was always prospective, unless contrary intention appeared from the same. Repeal would not, except otherwise provided, affect any right, privilege, obligation or liability acquired, accrued or incurred under law. Rights accrued to a person under law, could not be destroyed by subsequent amendment of law. Section 6(c) of General Clauses Act, 1897, had postulated that repeal of law would not affect any right, privilege, obligation or liability accrued, acquired or incurred under any enactment so repealed; it would continue in force as the law had not been repealed.
15. It is also the General principle of natural justice that a person cannot be devoid of his due legal right accrued to him during the currency of a particular legal instrument and thereby he cannot be subject to a lesser beneficial treatment, departure to this principle is thus an exception.
16. In the present case it is construed that four applications fall within the ambit of Article 10 of Fourth Schedule, the Trade Mark Ordinance, 2001 is not applied retrospectively as evident from the applicability of "old law" in such cases; however applications falling in the category specified in Article 11 of the Fourth Schedule, it is applied retrospectively and a mechanism was provided for conversion of pending applications to "new law" to make them in conformity with the same. It is also a settled principle of interpretation that statute is to be read as a whole, every clause of a statute is to be construed with reference to the context and other clauses of the enactment. I seek on the, above point, guidance from following case Laws:- PLD 2004 SHC 1174 (DIVISION BENCH OF SHC)
"From bare perusal of the above provisions of law, we find substance and force in the contention of Mr. Aqeel Ahmed Abbasi. We agree with the proposition that, in order to arrive at the correct conclusion, a scheme of law is to be examined in its totally and no provision of law is to be considered in isolation".
PLD 2003 KARACHI 127 (DIVISION BENCH SHC)
"While applying and interpreting any provision of law in a statute, a very important principle interpretation of statute is always required to be kept in view that no provision or section in the statute is to be read in isolation. All the provisions, of law are to be read in the totality of the scheme and in cohesion with each other, in order to ascertain the intention of the Legislature and the purpose of. Yet another principle is also to be kept in view that no provision of law is to be interpreted in a manner which may render another provision of law a superfluous, redundant or nugatory".
PLD 2004 PESHAWAR 3077 (FULL BENCH OF PESHAWAR H.C.)
"It is cardinal principle of the construction of Statutes law that whenever two interpretations of Statute/Rules are equally possible then the one which suppress the mischief and advance the cause shall be adopted".
17. In the instant case it can be construed that "scheme of law" includes enactment and statutory Instruments. In the instant case such set of "scheme of law" includes Trade Marks Act, 1940 to be applied in conjunction with Revised Trade Marks Rules, 1963 and the other such set encompasses Trade Marks Ordinance, 2001 along with Trade Marks Rules, 2004 commencement date of both is 12.04.2004.
18. In view of above discussion, I am of the view that impugned order passed by the learned Registrar is against the sprit of provisions contained in Article 10 of Fourth Schedule of Trade Marks Ordinance, 2001 read with Rule 135 and Rule 2(c) of Trade Marks Rules, 2004 and also not in conformity with the provision of section 6(c) read with section 3, subsection (37b) of General Clauses Act, 1897. The interpretation of Rule 134(2) of Trade Marks Rues in isolation without considering the scheme of law and Heading of Rule 134 is also in contravention of General Principles of Interpretation of statutes.
23. Accordingly appeals in hand are disposed of in the above terms. Consequently impugned order is set aside with decision that case which fall within the ambit of Article 10 of fourth schedule of Trade Marks Ordinance, 2001 shall be dealt with under Trade Marks Act, 1940 as provided in the said Ordinance and process and procedure shall be adopted as provided in Revised Trade Marks Rules, 1963.
I take this opportunity to commend learned counsel who brilliantly advanced their respective arguments.