MIANGUL HASSAN AURANGZEB, J:- Through the instant appeal under Section 19 of the Intellectual Property Organization of Pakistan Act, 2012 ("the 2012 Act"), the appellant M/s Glitz Pharma, assails the judgment dated 15.07.2022 passed by the learned Presiding Officer of the Intellectual Property Tribunal, Islamabad whereby the suit for grant of permanent injunction etc. instituted by the respondent, M/s Getz Pharma (Pvt.) Limited, was decreed and the appellant was restrained from using the name of "Zoliget" in a manner as would pass off as the respondent's registered trademark.
2. Learned counsel for the appellant drew the attention of the Court to the letter dated 15.06.2005 from the erstwhile Ministry of Health, Government of Pakistan whereby registration of drugs under Section 7 of the Drugs Act, 1976 ("the 1976 Act") was granted to the appellant. Included in the list of the registered drugs was "Zoglit 20 mg. Capsule" at serial No.50 in the said letter. This document was referred to in support of the argument that the permission of the Ministry of Health granted to the appellant to trade in the drug called "Zoglit" had been granted to the appellant prior to the respondent, which had been granted registration to trade in the drug by the same name on 23.09.2008.
3. Learned counsel for the appellant further submitted that the learned Court below has erred by holding that the respondent's trademark in class-05 had been registered on 13.12.2008 when in fact the said day was the date of the respondent's application for the registration of trademark; that the respondent's trademark was registered on 18.04.2012; that the appellant has already filed an application for the respondent's registration of trademark to be cancelled; that the appellant has also filed an application for the registration of its trademark carrying the name `Zoliget," which is a medicine for diabetes; and that since the appellant had been trading by using the name `Zoglit" for several years prior to the institution of the suit by the respondent, it was inequitable for the learned Court below to have allowed the respondent's suit and restrained the appellant from trading by using the name `Zoglit." Learned counsel for the appellant prayed for the appeal to be allowed in terms of the relief sough therein.
4. On the other hand, learned counsel for the respondent submitted that till date the appellant's application for the registration of trademark has not been accepted; that the respondent had applied for the registration of trademark `Zoliget" on 13.12.2008 and the Intellectual Property Organization had registered the said trademark on 18.04.2012; that on 23.09.2008, the erstwhile Ministry of Health had been granted registration for trading in the drug name `Zoliget" to the respondent; that the respondent has also applied for the registration of its copyright to manufacture the drug by the name of `Zoliget" on 21.04.2011; that the respondent has been selling the drug by the name of `Zoliget" for the past fourteen years; and that the impugned judgment dated 15.07.2022 passed by the learned Presiding Officer of the Intellectual Property Tribunal, Islamabad does not suffer from any legal infirmity. Learned counsel for the respondent prayed for the appeal to be dismissed.
5. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
6. The undisputed facts are that vide letter dated 15.06.2005, the erstwhile Ministry of Health, Government of Pakistan allowed the appellant's application for the registration of drug `Zoglit 20 mg. Capsule" under Section 7 of the 1976 Act. It was not until 11.05.2018 that the appellant applied for the registration of the trademark `Zoglit." Till date, the said application has not been allowed.
7. The respondent was granted registration for the drug called `Zoliget" on 23.09.2008 by the erstwhile Ministry of Health, Government of Pakistan. On 13.12.2008, the respondent applied for the registration of the trademark "Zoliget." The said application was allowed on 18.04.2012 and the Intellectual Property Organization registered the said trademark. The respondent has also applied for the registration of the copyright for the manufacture of the drug by the name of "Zoliget."
8. The present position is that the appellant's application for the registration of trademark "Zoglit" has till date not been accepted whereas the respondent's trademark "Zoliget" was registered as far back as 18.04.2012. The appellant's application for the cancellation of the said registration is still pending.
9. Even if it is assumed that the appellant has been trading by using the name "Zoglit" since 15.06.2005 when registration for "Zoglit 20 mg. Capsule" was granted by the erstwhile Ministry of Health in the appellant's favour, this would not be a ground sufficient to defeat the respondent's claim for the exclusive use of the word "Zoliget" on the basis of the registration of the trademark on 18.04.2012 granted by the Intellectual Property Organization.
10. The appellant placed reliance on the judgment in the case of Ghulam Mujtaba Paracha Vs. Muhammad Saleem (2010 CLD 311) in support of the argument that a prior user of a certain name had a superior right and was protected by law. Through the said judgment, an application for interim injunction had been allowed. Additionally in the said case, the registration of the trademark "FEASINA" in the plaintiff's favour was granted in the year 1982 whereas the defendant's trademark was registered in 2001. The said judgment has no application to the case at hand. Since in the instant case, the respondent has a registered trademark in its favour whereas the appellant's application for the registration of trademark "Zoglit" has not been decided as yet.
11. As regards the appellant's reliance on the judgment in the case of Pioneer Cement Limited Vs. Facto Cement Limited (2013 CLD 201) where the Hon'ble Lahore High Court had held that the principle of prior user and proprietor of an unregistered trademark would be applicable when none of the contesting parties had a registered trademark in their favour. The ratio in the said judgment also does not apply to the case at hand as the respondent has a registered trademark "Zoliget" in its favour whereas the appellant's application for the registration of the trademark has not been allowed as yet.
12. The rest of the case law relied upon by the learned counsel for the appellant are not relevant since they pertain to appeals from orders passed by the authority responsible for the registration of trademark. The learned Presiding Officer of the Intellectual Property Tribunal, while allowing the respondent's suit, has correctly placed reliance on the law laid down in the case of The Wellcome Foundation Limited Vs. Karachi Chemical Industries (Pvt.) Ltd. (2000 YLR 1376) where it had been clearly held that mere registration of a drug by the erstwhile Ministry of Health, Government of Pakistan under the provisions of the 1976 Act would not immunize other parties against claims by the holder of the registered trademark under the provisions of the erstwhile Trade Marks Act, 1940.
13. In view of the above, I do not find any merit in this appeal which is accordingly dismissed with no order as to costs.