AMIN-UD-DIN KHAN, J.--Through this appeal filed under Order XLII, Rule 1(r) of the C.P.C. the appellant; who is plaintif f, has challenged the order dated 16.01.2019 passed by the learned Presiding Officer, Intellectual Property Tribunal, Lahore, whereby an application for grant of temporary injunction, under Order XXXIX, Rules 1 and 2 of the C.P .C. was dismissed.
2. Yesterday , when the case was fixed for preliminary hearing, the learned counsel for the appellant was not available. The learned counsel for the respondents appeared with the permission of the Court at preliminary hearing stage, filed power of attorney and raised two objections that the appeal is barred by time and that the notice sent to the respondents in compliance with the Order XLIII, Rule 3 of the C.P.C. does not contain the copy of grounds of appeal, therefore, notice was defective one.
3. Mr. Ali Mohsin Qazalbash Advocate appeared along with Muhammad Shahzad Shaukat Advocate and stated that he is signatory of the notice sent to the respondents under Order XLIII, Rule 3 of the C.P.C. and the said notice mentioning the memo of appeal is attached and he confirms that memo of appeal was attached with the notice.
4. So far as the objection of learned counsel for the respondents with regard to the limitation is concerned; she stated that as order is dated 16.01.2019 and the respondents applied for issuance of certified copy, which were provided within a week, therefore, she has the impression that the appeal is barred by time when it was filed in this court on 26.03.2019.
5. The record was checked in the presence of learned counsel for the parties. As per certified copy of the impugned order attached with this appeal, the appellant moved an application for issuance of certified copy of the impugned order on 17.01.2019, which was prepared and delivered on 27.02.2019 and the appeal was filed on 26.03.2019'.
Therefore, it is within the prescribed period of limitation. Learned counsel for the respondents states that in this eventuality she will not press the point of limitation and further when the statement made by the learned counsel for the appellant that the grounds of appeal were attached with the notice, she will also not press the other objection.
6. I have heard the learned counsel for the parties at length.
7. As the respondents appeared to contest the appeal at preliminary stage, therefore, both the parties were heard at some length. Learned counsel for the appellant argues that there is no denial that Samsonite is the brand of respondents.
8. It will be appropriate that the prayer of suit as well as prayer of the application moved under Order XXXIX, Rules 1 and 2 of the C.P .C. be reproduced. The prayer of the suit is as fellows:- "It is respectfully prayed that this honourable Court may be pleased to pass a decree against the Defendants and and/or their chief executives, directors, secretaries, principal officer's, managers, shareholders, employees, servants, distributors, men, agents, stockists, retailers or dealers (hereinafter jointly referred to as the Defendants) in the following terms:- a) pass a decree for declaration that the Plaintif f is the Proprietor and prior user in its own right of the trademark SAMSONITE, and AMERICAN TOURISTER, used for retail stores on account of prior adoption and actual prior use of SAMSONITE for retail stores in class 35 for luggage, bags, suit cases, accessories etc., in Pakistan since year 2005 and AMERICAN TOURISTER thereafter for past 10 years, and that the Plaintif f is entitled under law to conduct its business of running retail stores for luggage, bags, suit cases, accessories etc., using SAMSONITE, and AMERICAN TOURISTER; b) pass a decree for permanent injunction restraining the Defendants perpetually from using and advertising in any manner and in any media, SAMSONITE, alone or as house of Samsonite and AMERICAN TOURISTER for retail stores for luggage, bags, suit cases, accessories etc., stores within stores or retail display sections within stores, shopping malls, either themselves in Pakistan or through a franchise or distributor or licensee, agent in relation to luggage, bags, suit cases, accessories etc, of all types and related products or any limitation of Plaintif f's proprietary trademarks SAMSONITE and AMERICAN TOURISTER in Pakistan, such as house of Samsonite and from committing acts of Unfair Competition in terms of section 67 of the Trade Marks Ordinance, 2001 and from passing off Defendants retail stores, services and business by using SAMSONITE and AMERICAN TOURISTER as and for that of the Plaintif f pass a decree permanently restraining the Defendants from operating any Shops/Stores Outlets under the name and style of SAMSONITE or house of Samsonite and AMERICAN TOURISTER in Pakistan; c) a further decree of permanent injunction restraining the Defendants from causing any damage or injury to the reputation and goodwill enjoyed by the Plaintif f in its trademarks SAMSONITE and AMERICAN TOURISTER for retail stores in any manner whatsoever; d) a further decree of permanent injunction restraining the Defendants from communicating to public through any electronic, social, print, audio or visual media any notices, remarks or statements regarding use of trademark, SAMSONITE and AMERICAN TOURISTER by the Plaintiff for retail stores in Pakistan; e) a further money decree against the Defendants for payment of Rs.500,000,000/- (Rupees five hundred million only) to Plaintif fs as damages on account of partial compensation for the loss and damage to the goodwill and reputation of the Plaintif fs; h) costs of the suit may also be awarded; and i) grant any other relief that this honourable Court may deem appropriate."
The prayer made in the application under Order XXXIX, Rules 1 and 2 . of the C.P .C. is as follows: "It is therefore, respectfully prayed that during the pendency of the titled suit, this honourable Court may be pleased to issue a temporary injunction restraining the Defendants from using in any manner trademark SAMSONITE alone or as House of Samsonite, and AMERICAN TOURISTER, for retail stores for luggage, bags, suit cases, accessories etc., or for store within stores or retail display sections within stores, shopping malls and restrained from advertising trademarks SAMSONITE and AMERICAN TOURISTER in Pakistan in any manner in any media for retail stores.
The Plaintif f also prays for an ad-interim injunction till the disposal of this application."
9. In the Court it was admitted that the brand of Samsonite is of the respondents and appellant is the sole distributor and the appellant set up independent Samsonite Stores, therefore, the suit was filed that the exclusive store is the idea of the plaintif f/appellant. States that for a long time they after set up the independent Samsonite Stores have a right that the injunctive order be granted on the basis of acquiesce nce on the part of respondents.
Argues that the learned trial court fell in error while refusing the grant of temporary injunction on the ground that the damages have been claimed by the appellant, therefore, no case of grant of temporary injunction.
10. On the other hand, learned counsel for the respondents argues that no agree ment in writing or distributorship has been provided. That the appellant was seller of the products of the respondents. That under Clause 18 of the Trade Mark Classification of Goods and Services the respondents are registered and under Clause 35 of the Trade Mark Classification of Goods and Services the proceedings are pending, which are being resisted by the appellant.
That under sections 86(c) and 76 of the Trade Mark Ordinance, 2001 protection of use is with the respondents and the respondents Nos.1 and 2 appointed the respondent No.3 as distributor in the year 2016, therefore, the suit was filed by the appellant in the Sindh High Court and a suit bearing No.2040 of 2017 was flied by the respondents before the High Court of Sindh at Karach i and the application for grant of tempor ary injunction was allowed vide order dated 24.07.2018. States that the suit for declaration was filed in the civil court by the present appellant at Lahore, the suit was dismissed and the appeal there against was also dismissed. A suit for damages was also filed by the appellant, which was dismissed for non-prosecution. Now it has been restored. States that the instant suit was filed on 08.02.2018. While relying upon "Italfarmaco S.P.A. v. Himont Pharma ceuticals (Pvt.) Ltd. and another" (2017 CLD 1382 ) states that this suit is not competent here, it be sera to the High Court of Sindh at Karachi. States that if an injunctive order is granted, the respondents will suffer an irreparable loss and damages, as prima facie no case has been made out by the appellant. Further states that on the basis of their distributions and claim lodged through the suit as well as the application is not maintainable. While relying upon "Nawaman Ahmed v. Adjudicating Officer and 2 others" (2012 CLD 1893 ), "Messrs Shaukat Soap and Ghee Industries (Pvt.) Ltd. v. Messrs Shaukat Brothers Soap Manufacturers (Pvt.) Ltd." (2016 CLD 1036 ), "Kamran Taj v.
Muhammad Shahzad Jamil and 2 others" (2015 CLD 2015 ), "Pioneer Cement Limited through Company Secretary v. FECT O Cement Limited through Chief Executive Officer and 3 others" (2013 CLD 201) and "Messrs H&B General Trading Company through Director v. Messrs International Marketing Company through Proprietor and 2 others " (2009 CLD 1028 ) prays the dismissal of the appeal.
11. I have noticed that there is an order passed by the court of competent jurisdi ction i.e. High Court of Sindh at Karachi, the operative part of the order dated 24.07.2018 is as under:- "I have come to the conclusion that the Plaintif fs have already made out a prima facie case of infringement under section 86 of the Trade Marks Ordinance, 2001, as the defendant even after submitting an undertaking before the Court is still using the identical signage in the name of "Samsonite" for which there is not consent of the owner/proprietor of the trademark/trade name, in relation to goods and services falling within Class 18 and 35 of the Fourth Schedule of Trade Mark Rules, 2004, read with Rules, 11, 71 and 88 thereof, the injunction application bearing C.M.A. No. 12935/2017 is granted and the defendant and its officers, servants and agents are restrained from infringing the Samsonite Mark and or other marks of the plaintif fs and while allowing injunction application, I direct the Defendant to immediately remove the signage being used by them in their outlets within 30 days from the date of this order and shall file a proper affidavit to that effect in the office duly executed by any of the Directors and or owners of the Defendant company ."
The suit was filed in the High Court of Sindh in the year 2017 and the present appellant was contenting the said suit being defendant in that suit. The filing of suit subject matter of this appeal on 08.02.2018. shows that after filing of suit before the High-Court of Sindh at Karachi by the respondents and further the injunctive order is passed in favour of the respondents, the instant suit was filed by the present appellant. The appellant can contest and press all its right's before the said Court and while deciding the instant application learned Presiding Officer, Intellectual Property Tribunal, Lahore has passed the order in accordance with law. When the plaintif f/appellant failed to make out a case for grant of temporary injunction while showing the necessary ingredients i.e. prima facie arguable case, balance of convenience and irreparable loss in its favour , this Court has no reason to disagree with the findings recorded by the learned Presiding Officer, Intellectual Property , Lahore in the light of case law referred to by the learned counsel for the respondents. Consequently , this appeal having no substance stands dismissed in limine