' This is an application for temporary injunction under Order XXXIX, rules 1 and 2, C.P.C. Read with section 151, C.P.C. For issue of a temporary injunction restraining the defendants, their servants, agents, representatives, dealers and all persons claiming through and under the defendants jointly and severally from using, selling or disposing of any goods with the word "MANO and/or any other part of the plaintiffs; registered Trade Mark.
2. The facts, briefly stated, for the purpose of these applications are that the plaintiffs are dealing with the manufacture and sale of fabrics and are the registered proprietors of a label Trade Mark comprising the word "MANO" registered under No,75191 on 6th October, 1981 in respect of fabrics included in Class 24. It has been alleged that the defendants have been aware of the plaintiffs'
Trade Mark and the use thereof by the plaintiffs in respect of their fabrics which are sold in the market. It has been further alleged that the said trade mark has been continuously in use since very long time and the trade mark has acquired valuable goodwill and substantial popularity and reputation in the market. The plaintiffs also got published a public notice in daily "Nawa-i-Waqt" dated 3rd May, 1985 to this effect. It is alleged that the defendant No,1 is marketing the fabrics under the name/trade mark "MANO" on the selvedge of the said goods of defendant No,1, which is the most essential and dominant feature of the plaintiffs' registered trade mark and by which name the goods of the plaintiffs are known and recognized by the traders and customers. It is also alleged that defendant No,1 has acted dishonestly and fraudulently by introducing and putting into the market fabrics with the selvedge containing the word "MANO" as a result of which the goods of defendant No,1 are being passed off in the market as the goods of plaintiffs. The plaintiffs having come to know of the infringement and passing off have filed this suit. Besides this application for a temporary injunction, also filed an application for appointment of Nazir for seizure of the goods belonging to defendant No,1 containing the word "MANO". An order was accordingly passed on the said application. The Nazir has therefore, seized 251 Thans or there-about from the possession of defendant No,2, which are admittedly the property of defendant No,l. In the counter-affidavit filed by defendant No,1, it was inter alia pleaded that the application has been filed with male fide intention, the plaintiffs have no prima fade case, the balance of convenience is not in their favour and no prejudice or loss will be caused to them if the application for injunction, is dismissed, as the plaintiffs have never used the trade mark on their merchandise. In the counter-affidavit reliance was placed on the written statement which was filed by defendant No,1 on the same day, wherein it was, inter alia, pleaded that the registration is illegal and has been obtained by wrongful means.
The word "MANO" is common in the market and is being used by several other small manufacturers. It was denied that defendant No,1 have ever infringed the mark of plaintiffs or passed off their manufactured goods as those of plaintiffs.
3. In re-joinder the plaintiffs have denied all allegations regarding wrongfully obtaining the trade mark or its non-user. The plaintiffs have given sales figures from 1974 upto 1985 which run into lacs of rupees. In fact the sale figures during the year 1974 have been shown as Rs,14,61,940, whereas in 1984 the sale figures as shown in the rejoinder are Rs,11,40,757 and so in 1985 the sale, figures have been shown as Rs,15,05,620. The plaintiffs have also attached some publicity material which include calendars issued by the plaintiffs since 1969. They have also attached some invoices.
4. On the basis of the material placed on record, Prima facie I am satisfied that the trade mark "MANO" is registered in favour of the plaintiffs in Class 24 for fabrics, which has been continuously in us by the plaintiff. Under section 23 of the Trade Mark Act, 1940 the registration is to be treated as prima facie evidence of its validity. In case, defendant No,1 has any objection to its validity, course is open to defendant No,1 under the provisions of the Trade Mark Act to fill an application for rectification before the Registrar Trade Mark as provided in law. As for as the similarity of the trade mark to the extent of the word "MANO" which appears to be a dominant feature, it is common in both the goods of the plaintiffs and defendant No,1. On a simple comparison of the said trade mark of the word "MANO" as appearing in the Annexures P.2 and P.4 of the plaintiffs and defendant No,1 respectively, it leaves no room for doubt that they are one and the same and unless the interim injunction is issued the interest o justice will suffer inasmuch as an unwary purchaser will be prejudiced.
5. Mr. S.M. Gharib Nawaz, learned counsel for the defendant No,1 has relied on a decision reported as Messrs Lipton Ltd. v. Messrs Frontier Comellia PLD 1954 Sind 124, but the facts in that case are distinguishable inasmuch as in the case relied on by Mr. S.M. Gharib Nawaz, it was alleged that the labels was not a registered trade mark and no suit was maintainable for infringement of trade mark. However, the case was decided on the question of resemblance and it was observed by the learned Judge that the resemblance between the respective labels and monograms, was not such as may lead a cautious purchaser to the inference that the goods offered were those of the plaintiffs. It was thus held that there was no prima fade case in favour of the plaintiff.
6. With respect, I do not find myself in agreement with the observation of the learned Judge (as he then was) that resemblance between two trade marks should be such as it may lead a cautious purchaser to the inference that the goods offered were those of the plaintiffs. In my humble view the test is whether an unwary purchaser is likely to be deceived. For this view, I place my reliance on a decision of Division Bench of erstwhile High Court of West Pakistan, Lahore, reported as Insaf Soap Factory v. Lever Brothers Port Sunlight Ltd. PLD 1959 (W.P.) Lah.
381. The relevant passage reads as under:- "We are thus of the opinion that the criterion laid down by this High Court in Ram Kumar Jalan v. R.J.
Wood & Co. (1887) 36 Ch. D. 1 that in the cases of infringement of trade mark the test is whether the unwary purchaser is likely to be deceived into purchasing the goods of the person infringing the trade mark as the goods of the owner of the trade mark still holds good. Not much weight can, therefore, be attached to the few points of dissimilarity between the plaintiff's and defendant's wrappers to which our attention has been drawn by the learned counsel for the appellant because the points of similarity in them are so great that an unwary purchaser is likely to, be deceived in purchasing the defendant's goods as that of the plaintffs."
7. For the foregoing reasons I grant the temporary injunction against defendant No,1 and restrain it from using the word "MANO" on its fabrics during the pendency of the suit and offering any fabrics with the word "MANO". It goes without saying that number 187 is not registered and, therefore, no injunction will be issued in respect thereof.
8. As far as defendant No,2 is concerned Mr. Muhammad Shafiq Lodhi has submitted that he is neither a manufacturer nor seller of the goods in question, he is only a folder. He, however, undertakes that he will not fold the fabrics of defendant No,1 bearing the trade mark "MANO" during the pendency of the suit. I, therefore, .
9. C.M.A. No, 4036/85.-- Since I have already passed an order thereon and the Nazir has already seized the goods, no futhure order is pressed at the moment. The application is disposed of accordingly.
10. C.M.A. No, 90/86.--This is an application of defendant No,1 for return of the goods, sezied by the Nazir, to him or its sale through the Court. I am afraid this application cannot be granted, in the circumstances of the case, as it will amount to perpetuating an illegality. However, since Mr. Gharib Nawaz submits that the fabrics pertain to winter season and are of fashion, and if the goods remain in the custody for a number of years, the interest of defendant No,1 may suffer, I, therefore, order that the matter will now go for issues, as the written-statement have been filed and the case should be fixed for evidence after the summer vacation of 1986.
11. As regards C.M.A. Nos. 438, 439 of 1985 in the other Suit No,808/85, the facts and law being the same, the order passed in the earlier C.M.A. Nos. 435 and 436 of 1985 will also be read into this suit on the above C.M.As.
12. Mr. Muhammad Zaki Ahmad has, however, invited my attention to the reply of defendant No,1 on the notice dated 12th October, 1985, in which it acknowledged the registration of the trade mark "MANO 187" in favour of the plaintiffs and undertook not to use the same in future.
13. Nazir's reference.--A sum of Rs,500, has already been deposited by the plaintiffs as the Nazir's fee. The said amount is sanctioned to be appropriated by the Nazir, subject to the administrative approval of the Honourable Chief Justice. The reference is also disposed of.