' This application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. for grant of a temporary injunction is filed by the Plaintiff with a prayer to restrain the defendants from manufacturing, selling, offering for sale, advertising or otherwise using on its product, liquid petroleum gas in cylinders, with the mark "Buprane" with a device of flame thereon, on the ground that the use of the above mark by the defendants amounts to infringement of plaintiff's registered trade mark "Burshane" with devices of two flames. This application for grant of temporary interim injunction during pendency of suit is filed along with the suit for permanent injunction in which a similar prayer for grant of a permanent injunction against the defendants is made.
' The plaintiff No,1 in the suit is the registered proprietor whereas plaintiff No,2 is the registered user of the trade mark "Burshane" which consists of the words "Burshane" with devices of two flames.
This mark is registered under Nos. 23867, 23868, 23869, 43541, 43785 and 46180 in classes 1,4 and 11.
The plaintiffs claim to be using the above mark on their product liquid petroleum gas which they offer for sale in cylinders in Pakistan since 1966. It is alleged by the plaintiffs that on account of the high standard of Plaintiffs product and extensive advertisement of the trade mark "Burshane" it has acquired distinctiveness and is very popular among the general public. It is alleged that in or about June, 1979 the Plaintiffs came to know that the defendants are offering for sale liquid petroleum gas in cylinders under the mark "Buprane" with device of one flame, when they came across an advertisement published by the defendants in daily issue of "Jung" dated 10th June, 1979. It is claimed that the use of the mark "Buprane" with a device of flame thereon by the defendants on their product amounts to infringement of the plaintiffs registered trade mark "Burshane" with device of two flames. It is also claimed that as the goods of the plaintiffs and the defendants are of the same class and description it is likely to cause deception and confusion in the mind of a unweary purchaser who may be induced to purchase the goods of defendant as that of plaintiffs because of similarity of the two marks. The Plaintiff has produced the offending advertisement which appeared in the newspaper "Jung" alongwith their own advertisement and the two gas cylinders shown in this advertisement are identical besides other similarities. The plaintiffs have also produced the printed copy of literature issued by the defendants relating to "Buprane" liquid petroleum along with their own literature on "Burshane" which also shows that the colour scheme and get up adopted by the defendants is very much similar to the plaintiffs printed material. I heard the injunction application on 2-12-1980 at length and reserved order thereon. However, on 4- 12-1980 Mr.Sher Ali the learned counsel for the defendant presented an application under section 151, C.P.C. in Chambers and prayed that the sale figures of "Buprane" Gas from 1974 to 1977 and November, 1977 to 1980 disclosed in the application may be taken into consideration while deciding the injunction application. As these sale figures were not filed by the defendants at the time of hearing of the injunction application and the plaintiffs had no notice of it, I directed rehearing of injunction application. Accordingly I reheard the matter and again reserved orders on the application.
' The learned counsel for the defendants contends that the mark "Buprane" used by the defendants is quite different and distinct from the plaintiffs mark "Burshane" and therefore, there is no likelihood of any confusion or deception being caused in the mind of an unweary purchaser while purchasing the product of defendants. It is also contended by the learned counsel that the defendants are selling their product under the mark "Buprane" since 1974 whereas the present suit for injunction was filed by the Plaintiffs on 25-5-1980 and as such there is a delay of about six years in filing the present suit which alone is sufficient for refusal of temporary injunction in the Case. None of the above contentions raised by the learned counsel for the defendants has substance. I will first deal with the point of delay raised by the defendant. In support of the contention that the defendant is using the mark "Buprane" since 1974 on their produce to the knowledge of plaintiffs the learned counsel for the defendant has relied on the correspondence produced by the plaintiffs along with the plaint and the rejoinder affidavit and the alleged sale figures of the products filed by the defendant along with the application under section 151, C. P. C. In so far the sale figures of "Buprane" from 1974 to 1977 are concerned Mr.Sher Ali, concedes that although in the application under section 151, C.P.C. dated 4-12-1980 the defendants have mentioned that the sale figures from 1974 to 1977 are filed as Annexure "I" to the application but in fact no such details are stated in Annexure "I". At the hearing of application I enquired from Mr.Sher Ali, if he was in a position to submit the sale figures of "Buprane" from 1974 to 1977 but the learned counsel expressed his inability to produce the same. The sale figures disclosed in Annexure "I" to application under section 151, C.P.C. relate only to the alleged period of November, 1977 to June, 1980. In these circumstances there is nothing on record to show that the defendants affected sale of "Buprane" liquid petroleum gas between 1974 to 1977. In so far the correspondence produced by the plaintiffs along with its rejoinder and plaint are concerned, it only show that between the years 1975-76 the defendant on various occasions made request to the plaintiffs for supply in bulk of various quantities of liquid petroleum gas to the defendants on the ground that the defendants plant had not yet started functioning. There is however, no indication in the correspondence that the defendants were selling or marketing the liquid petroleum gas under the mark "Buprane". The learned counsel for the defendants referred to some of the agreements allegedly entered into by the defendant with their distributors at different stations in the Province of Sind in the year 1974, but in view of the fact that the defendants have not disclosed the alleged sale figures for the years 1974 to 1977 and that these agreements relied by the defendants were executed between defendants and their alleged distributors and there is nothing on record to show that the plaintiffs were aware of these agreements it cannot be said at present that the plaintiffs were aware that the defendants were selling liquid petroleum gas in cylinders under the mark "Buprane". It is not disputed by the learned counsel for the defendants that prior to the advertisement dated 10-6-1979 which was published by the defendants in the newspaper "Jung", the defendants had not advertised their product through newspapers,, The Plaintiffs categorically alleged that they came to know about the sale of liquid petroleum gas in cylinders by the defendants on or about 10th June, 1979. The correspondence produced in the case show that as soon as the plaintiffs became aware of the use of the above mark by the defendants they protested against it. It is also clear from these letters that several meetings took place between the plaintiffs and the defendants to resolve the issue and at one stage the defendants showed their willingness vide their letter, dated 27-4-1980 to discontinue use of the mark "Buprane" if the Plaintiffs properly compensated the defendants for its losses which might arise as a result of withdrawal of trade mark "Buprane". However, it appears that the dispute could not be settled amicably between the parties with the result the present suit was filed on 25th May, 1980. In these circumstances I am satisfied that there was no delay on the part of the plaintiffs in instituting the present suit for injunction and on this ground alone injunction could not be refused. The next contention of the learned counsel for the defendants is that the two marks "Buprane" and "Burshane" are quite dissimilar both phonetically and visually and therefore, no case of confusion or deception is made out and as such no injunction can he granted. The learned counsel has relied on the case of Abdul Waheed v. Abdul Rahim PLD 1974 SC 104, to support his above contention. On the basis of above Supreme Court case the learned counsel attempted to argue that the trade mark "Diagon" and "Dragon" though similar in their first syllables "Dia" and "Dra" were allowed to be registered alongwith another existing registered trade mark "Saigon" and, therefore, on the same analogy the marks "Burshane" and "Buprane" can also be allowed to stand side by side. This case cited by the learned counsel is of no assistance to him as in the above Supreme Court case the similarity of two trademarks namely, "Diagon" and "Dragon" were not in dispute before the Court. In the above cited case the Court concerned with the similarities of the trade marks "Diagon" and "Dragon" with the mark "Siagon". In fact the above cited case supports the contention of Plaintiffs in this case that there is phonetic resemblance in the mark of plaintiffs and the defendants as the first syllable of the two marks namely "Bur" of "Burshane" and "Bu" of "Buprane" are phonetically similar.
In view of the above discussion, I am of the view that the plaintiff has succeeded in making out a prima facie case for grant of temporary injunction as the use of trade mark "Buprane" by the defendants is likely to cause deception and confusion in the mind of an Bun weary purchaser because of the phonetic resemblance in the first syllable of the registered trade mark of the plaintiff and the offending mark used by the defendant. I, therefore, grant a temporary injunction as prayed till the disposal of the suit.
Injunction granted.
1984 MLD 338 [Karachi] Wore Gul Zarin Kiani, J Messrs MIAN MUHAMMAD ALLAH BAKHSH Ltd.--Petitioner versus The REVENUE OFFICER (EXECUTIVE ENGINEER), ELECTRICITY WAPDA, LAHORE and others--Respondents Writ Petition No, 1008 of 1967, decided on 3rd June, 1984. Electricity Act (IX of 1910)-- ---Ss .24(2) & 26(6)--Dispute regarding correctness or otherwise of meter--Referable to statutory arbitration of Electric Inspector for his decision--WAPDA serving petitioner mill with a heavy demand notice on ground that meter installed on its premises was tampered with--Petitioner mill, however, not associated in any manner in the process of determina tion of such dues--Parties at serious variance on correctness or otherwise of meter--Held; such a dispute was to be decided through statutory arbitrationOr-Electric Inspector as provided under S.26(6) of Electricity Act, 1910 where the matter could have been more appropriately resolved by the skilled and technical hands--Demand made by WAPDA quashed in circumstances and petitioner directed to invoke statutory arbitration as provided under S.26(6) of Act--Constitution of Pakistan (1962),Art. 98 (2). [p.
340] A A.Karim Malik for PetitioneRs,, Mian lqbal Khalid for Respondents. Date of hearing: 3rd June, 1984.
' The petitioner Mill is a consumer of electricity being supplied by WAPDA. The meter installed on the premises of the Mill was checked by Technical Assistant to Chairman WAPDA, A.E. Detection, Meter Inspector and Inspector of Directorate of Complaints and Investigations on 3-3-1967 and was found that the meter had been tampered with and its seals were found to have been replaced by forged ones. On 6-3-1967, the meter was again inspected by XEN alon gwith Meter Inspector who invited petitioner's staff to participate in the proceedings. Seal of detection was fixed on the meter in order to obviate the risk of more electricity being stolen. Consequently a demand notice, dated 3-5-1967 for Rs,23,710.79 calculated on the basis of probable consumption was issued by Assistant Director, Detection asking the petitioner Mill to make payment within ten days failing which disconnection of meter was threatened.
2. Petitioner aggrieved with the service of demand notice invoked constitutional jurisdiction of this Court with prayer to declare the demand of Rs,23,710.79 illegal and to have been made without lawful authority. Report was called for and after its due consideration writ petition was admitted to regular hearing on 30-1-1968. Since then it awaits adjudication.
3. I have heard learned counsel for the parties and examined the available record. Leaned counsel for the petitioner has contended that it was incorrect to state that M & T Seals pasted on the Electric Meter had been replaced by forged ones in order to show incorrect consumption of electricity. Learned counsel has contended that no show-cause notice was issued to the petitioner Mill to explain its position regarding the removal of genuine seals from the meter, nor was the owner of Mill associated in any inquiry preceding determination of dues by the respondent WAPDA.
Learned counsel has pointed out that demand is based on clear maladies on the part of certain officials of the respondent. Previously also a demand for the payment of sum of Rs,39,122.33 was made from the petitioner on identical points. The petitioner was constrained to file writ petition No, 318 of 1967 against respondents wherein the said demand was similarly assailed against the respondent. The respondent, therefore, are trying to harass the petitioner time and again through these vexatious demands. Threat to disconnect electricity was also challenged on the basis of the alleged excessive demands of the respondent. While admitting writ petition to regular hearing, however disconnection was suspended subject to petitioner's furnishing security. Learned counsel for the respondent has, however, contended that the consumer had replaced the genuine seals with a view to bring within his powers to stop proper and correct running of the meter or reverse its readings as and when he chose. Since the actual consumption of electricity was not recorded by the meter due to the above act of the petitioner Mill it was necessary for respondent to assess the probable consumption of electricity therefore, the method adopted by respondent to assess probable consumption was rather fair and lenient.
4. Both the parties are at serious dispute on the basic factor as to the correctness of meter.
Contention of the petitioner is that the meter was correct and seals had not been replaced and consequently the readings- of the meter alone would determine the consumption of electri city. On the other hand contention of the respondent is that the seals had been replaced by forged one and the meter did not record the consumption of electricity correctly. Replacement of seals was found as a result of detection by the competent staff of WAPDA. However, it is admitted by both the parties that before determination of the dues culminating in demand, the petitioner Mill had not been associated in any manner in the process of determination of dues. In case of such a dispute, between the parties the matter is to be resolved through statutory arbitration of the Electric Inspector, Government of Punjab as provided under Section 26(6) of the Electricity Act, 1910 which for facility of reference is reproduced below:- "(6) Where any difference or dispute arises as to whether any meter referred to in subsection (1) is or is not correct, the matter shall be decided, upon the application of either party, by an Electric Inspector, or by a competent person specially appointed by the Provincial Government in this behalf, and where the meter has, in the opinion of such Inspector or person, ceased to be correct, such Inspector or person shall estimate the amount of the energy supplied to the consumer or the electrical quantity contained in the supply during such time as the meter shall not in the opinion of such Inspector or person, have been correct and where matter has been decided by any person other than the Electric Inspector, an appeal shall lie to the Inspector, whose decision shall in every case be final; but, save as aforesaid the register of the meter shall, in the absence of fraud, be conclusive proof of such amount or quantity: ' Provided that, before either a licensee or a consumer applies to the Electric Inspector under this subsection, he shall give to the other party not less than seven days' notice of his intention to do."
5. In view of the statutory provisions relating to arbitration contained in section 24(2) and section 26(6) of the Electricity Act, 1910, the dispute as to the correctness of meter was to be referred to the Electric Inspector for his decision. Instead of invoking the necessary arbitration, the petitioner has rushed to the High Court to quash the demand in its constitutional jurisdiction. The disputed matter could have been more appropriately resolved by the skilled and technical hands as provided under the Act. Writ petition, therefore, is accepted, demand of Rs,23,710.79 made by the respondent is quashed and the Petitioner is directed to invoke statutory arbitration as provided under the provisions of Electricity Act, 1910 within a period of two months from today. The Electric Inspector will endeavor to decide this old dispute expeditiously.
6. In the circumstances of the case parties are directed to bear their own costs.