' This appeal has been filed by the appellant under section 76 of the Trade Marks Act, 1940, against the decision, dated 13-11-1979 of the Deputy Registrar, Trade Marks, Karachi, respondent herein, refusing the Application No.67326 in Class 5 of the appellant for registration of trade mark of a device of a horse with the word 'STUD' written underneath the device of the horse. I have heard Mr. S. Anwar Ali, learned counsel for the appellant. No one has appeared on behalf of the respondent, who has remained absent.
2. After the aforesaid Application No.67326 in Class 5 had been filed by the appellant, a notice under section 14(1) of the Trade Marks Act, 1940, was received from the Registrar of Trade Marks by the appellant calling upon to show cause why the application of the appellant should not be refused on the ground that the mark applied for was objectionable under sections 10(1) and 8 (a) of the Trade Marks Act, 1940. In the said show-cause Notice, dated 2-10-1978 reference was made to two trade marks already registered, namely, Mark No.11699 of Mobil Petroleum Company and Mark No.44654 registered in the name of Wellcome Foundation Limited. In the case of Mobile Petroleum Company, the mark that is registered comprises the device of a flying horse, whereas the mark of Wellcome Foundation Limited is a device of a UNICORN, a mythological animal. In the said show-cause Notice reference was also made to two applications namely Nos.64253 and 60460 both made by Wellcome Foundation Limited and in both these pending applications the device, for which registration was sought as a trade mark, was that of a UNICORN.
' A detailed reply was given by the appellant through his attorney by letter, dated 25-11-1978.
Thereafter, a hearing was granted to the attorney of the appellant by the Deputy Registrar of Trade Marks and by impugned decision, dated 13-11-1979 the application has been dismissed at the pre- publication stage.
' The appellant had also relied upon his own affidavit, which wa sworn before a Notary Public at Monaco on 11-4-1979. This affidavi was ignored by the Deputy Registrar of Trade Marks on the groun that it was not legalised or authenticated by the Pakistan Embass under the Evidence Act. Mr. S. Anwar Ali, learned counsel for th appellant, submits that there is no provision in the Evidence Act, which requires any affidavit sworn in foreign country to be authenticate by Pakistan Embassy. The learned counsel is correct. In the Evidenc Act there is no such provision.
' The main ground, on which the application has been refused at the preliminary stage is that the mark applied by the appellant, for which he had filed the aforesaid application and Mark No.44654 registered in the name of Wellcome Foundation Limited are confusingly similar and they are for same description of goods and in same Class.
5. In this regard the contention of the learned counsel for the appellant is that the device registered under Mark No.44654 in the name of Wellcome Foundation Limited is of a UNICORN which is a mythological animal, whereas the mark, for which the appellant has filed the application is of a Flying Horse with the word "STUD" written underneath the device. According to the learned counsel, there is no similarity and in any case there cannot be any confusion as regards the two marks being similar. The other arguments of the learned counsel for the appellant is that the device of a horse was registered as a trade mark of Mobil Petroleum Company in 1966, and in spite of such trade mark, which had already been registered as Mark No.11699, in the same class the device of a horse was registered in the name of Wellcome Foundation Limited under Mark No.44654 and if that is so, the application of the appellant should not have been rejected at the preliminary stage but the Registrar should have proceeded with the application for registration after issuing notices to the holders of the registered mark and after publication.
' I do not want to make any observation at this stage in so far as similarity of the marks is concerned, as in my view, in this case, it does not call for any observation in that regard in this appeal, as the second argument of the learned counsel has substance. The mark of Flying Horse having been registered in 1966 in the name of Mob' Petroleum Company and then the Registrar allowing the registration of a mark with the device of a UNICORN in the name of Wellcome Foundation Limited, the Registrar should have proceeded with the application for registration of the appellant instead of rejecting such application at th preliminary stage.
' In the circumstances, the order, dated 13-11-1979 of the Deputy Registrar of the Trade Marks is set aside and the Registrar of Trade Marks is directed to proceed with the Application No.67326 of th appellant for registration after issuing notices to the registered holders of Trade Marks Nos.11699 and '44654 and also to the applicants in Applications Nos.63253 and 60460 and after publication and then decide! The application in accordance with law ' M . A . No. 14 of 1980 stands disposed of.