' The appellant/petitioner filed a' suit before the learned District Judge, Lahore (original jurisdiction) against the respondent for permanent injunction restraining respondent No,1 from using the trade mark 'ARMINIUS'. He claimed that he was proprietor of registered trade mark 'ARMINIUS bearing No, 45724, dated 6-8-1966 and thus has the exclusive right to use the said trade mark in respect of arms and ammunition manufactured or imported by him. It is further alleged that respondent No,1 who too is a trader of Lahore dealing in arms and ammunition has committed an act of piracy by importing low quality goods i.e. 105 revolvers from abroad with trade mark 'ARMINIUS' on them. The goods are admittedly in the custody of the Collector Customs viz, respondent No,2 at the moment.
It was pleaded that defendant No,1 had no right to import and sell arms and ammunition bearing trade man 'ARMINIUS' and similarly defendant No,2 could got legally hand over the said goods to defendant No,l.
2. Alongwith the suit, the appellant/petitioner submitted an application before the learned trial Court seeking issuance of temporary injunction against the respondents. The learned Additional District Judge who was seized of the matter has, vide his order, dated 16-11-1983 dismissed the petitioner's application for temporary injunction holding that the petitioner was not possessed with prima facie case.
3. The aforesaid order, dated 16-11-1983 passed by the learned Additional District Judge, Lahore, has been impugned through the present F.A.O. Alongwith the appeal, the petitioner has submitted the present miscellaneous application seeking suspension of the operation of the impugned order.
4. The petitioner's case is that the trade mark Arminius' stands registered in his name since 6-8- 1966 and this registration would remain valid till 1968. It is, however, a common ground between the parties that a German firm engaged in manufacturing of arms and ammunition, got, registered the trade mark 'ARMINIUS' for its products in West Germany in the year 1951. The name of the said manufacturing firm of Germany is Hermunn Weihravch Ohg.
5. The contention of the respondent is that arms manufactured by the aforementioned German firm bearing the trade mark of 'ARMINIUS' are being imported by various dealers of arms and ammunition in Pakistan since 1951. It is, therefore, submitted on behalf of the respondents that the subsequent registration of the trade mark 'ARMINIUS in Pakistan in favour of the petitioner would not serve as a bar against the respondent or any other dealer in arms in Pakistan to import for purposes of trade, the arms and ammunition bearing the trade mark 'ARMINIUS' manufactured in Germany.
6. Documentary evidence was produced before the learned Additional District Judge and some documents have also been shown to this Court to show that arms bearing the trade mark 'ARMINIUS' have in the past been imported in Pakistan by different dealers of arms and ammunition including respondent No,l. Some dealers other than respondent No,1 imported such arms even prior to 1966 when trade mark 'ARMINIUS' was registered in favour of the petitioner in , Pakistan Respondent No,1, however, imported arms bearing trade mark 'ARMINIUS' from Germany for first time in 1975.
7. In Anwar v. The Golden Pen Manufacturing Co. PLD 1955 Sind 345 it was held with reference to section 25 of the Trade Marks Act, 1940 that the prior user of trade mark has preference over owner of registered trade mark of a latter date. The relevant portion of section 25 of the Trade Marks Act, 1940 reads as under:- "Nothing in this act shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor-in-title of his has continuously used that particular trade mark from a date prior:-
(a) to the use of the first mentioned trade mark in relation to those goods by the proprietor or predecessor-in-title of his".
8. The learned counsel for the petitioner also wanted to avail of the provisions of section 15(e) of the Customs Act, 1969. Under the provisions of section 15(e) ibid no goods made or produced outside Pakistan and having applied thereto any name or trade mark, being or purporting to be the name or trade mark of any manufacturer dealer or trader in Pakistan, can be brought whether by air or land or sea into Pakistan.
While pressing into service, the provisions of section 15(e) the Customs Act, 1969, the learned counsel appears to have failed t. Notice the provisions of sub- clause (i) to clause (e) of section 15 ibid. According to sub-clause (i) supra the prohibition contained in clause (e) would not apply if the name or trade mark is, as to every application thereof, accompanied by a definite indication of the goods having been made or produced in a place outside Pakistan.
9. In the circumstances of the present case, 105 revolvers in question have admittedly been manufactured in Germany and the papers accompanying the consignment are clearly indicative of this fact. In this view of the matter, section 15(e) of the Customs Act, 1969, is to no avail to the petitioner.
10. In view of the above, it taken to the impugned finding of to the effect that the petitioner of temporary injunction. The therefore, dismissed. is concluded that no exception can b: the learned Additional District Judge, has no prima facie case for the gran instant miscellaneous application is, therefore, dismissed.