1. ' The plaintiff is proprietor of a registered trade mark from 17-12-1958 for the word 'Indus Pencils' in clause 16. The registration is in respect of goods namely pencils, fountain pens, inks, stationery and other goods including in clause 16. It is also a condition for registration that in use upon goods covered by the specifications other than pencils, the mark would be varied by the substitution of such goods for the pencil. The plaintiff claims to use the said trade mark upon a wide variety of goods manufactured by it namely, pencil, sharpeners, note books, ball point pens and other stationery items. The plaintiff's goods are manufactured and marketed by it under its trade mark 'Indus' and have acquired wide reputation because of their high standard of quality. It is alleged that the defendant knowing these facts well, started making the same goods namely pencils, sharpeners, and note books under the trade mark 'Indus' which constitute infringment of trade mark right of the plaintiff. The defendants are indulging in unfair business practices and with the intention to earn illegal profits they are passing of the goods of inferior quality as to be goods of the plaintiff which are well known in Pakistan as 'Indus Pencil Sharpeners' and "Indus note books'. On these allegations the plaintiff- has claimed to have suffered loss of goodwill and the damage has been assessed at Rs,1,01,000. The plaintiff has therefore, filed the suit for damages and permanent injunction. Alongwith the plaint an application under Order XXXIX, rules 1 and 2 C.P.C. Has been filed for temporary injunction restraining the defendants, their servants and agents from using, selling or disposing of any goods bearing trade mark 'Indus' or any other word/mark similar to it, written or printed on the said goods.
2. ' The defendants filed their counter-affidavit and stated that Indus Corporation is a. Partnership firm and they are the proprietor of Indus Copy House, carrying on business as paper stationery dealers with principal place of business at Karachi. It has been stated that the plaintiff is a manufacturer and merchant in respect of pencils and ball point pencils, which are manufactured and sold under the trade mark 'Deer'. It was denied that the plaintiff has ever manufactured or sold any goods covered under clause 16, nor it has manufactured and sold and exercise book or stationery of like nature. The defendant has also challenged the validity of the trade mark of the word 'Indus' as it is a geographical name: It is further stated that the plaintiff has never used this mark from 17-4-1958 upto the filing of the suit which has been done mala fide and the defendants are taking proper steps for rectification of the Register of Trade Marks. The defendants have alleged that the plaintiff does not manufacture sharpeners and it is selling sharpeners import from Shanghai, China in containers with the word 'Indus' printed on it. The defendants have produced such pockets/containers with sharpeners. The plaintiff's advocate has admitted that they belong to the plaintiff and the sharpeners were manufactured at China. The defendants claim that they have bona fide used their trade name 'Indus Copy House' and they have been selling and manufacturing exercise books, pocket note books, cash books, duplicating books in different sizes, Office files of four quality, drawing copies of different sizes, registers with different sizes and practical journals, and pencil sharpeners of different designs and quality. On all these items word 'Indus' with mark and IC for Indus Copy House is printed. The defendant started business in the year 1974. They have telephone in their name, and have participated in the meeting of Pakistan Standard Institution for preparation of standard for excise books on 4-11-1976. Indus Corporation are registered exporters. They pay income-tax and have advertised their products during the year 1979 through various medias of advertisement. Their pencil sharpeners were designed and registered on 29-3-1984. Out of the documents which were available with them they have filed to prove their sale during the year 1977, 1978, 1979, 1980, 1981, 1982, 1983, 1984, 1985 and 1986. They alleged that it was within the knowledge of the plaintiff that they have been carrying on business with their name-Indus and Monogram IC' and therefore, the question of infringement does not arise.
3. ' Mr.Zaki the learned counsel for the plaintiff has contended that the plaintiff is a registered owner of the trade mark 'Indus Pencil' which is variable according to the products in clause 16 and the same not having been challenged so far and as it has been continously in use for the last 25 years, it has by virtue of section 24 become final and conclusive and -is a prima facie evidence of valid registration. The plaintiff relying on 1986 MLD 930 has contended that as an unwary purchaser can be defrauded to purchase the defendants goods believing them to be those of the plaintiff, interim injunction should be granted restraining the defendant from selling goods with 'Indus' mark on the sharpener and note books. The main contention of Mr.Kazi Iqbal is that the plaintiff has not been manufacturing and selling the note books or exercise books and sharpeners which are being marketed by the defendants openly from the year 1974 to the knowledge of the plaintiff and without any objection.
4. ' The plaintiff is the proprietor of a, registered trade mark 'Indus Pencil' and all other goods included in clause 16. However, the dispute between the parties is in respect of note books and sharpeners.
5. So far the note books are concerned, the defendants claim is that this is not manufactured and marketed by the plaintiff and only for the purposes of filing the suit, the note books have been recently marketed by the plaintiff. It is therefore a mala fide action on their part to deprive the defendants of their business. The plaintiff has filed various documents to show the products it is producing under its trade mark. There are large number of receipts, orders and invoices but they mostly relate to 'Indus Pencil or ball point pencils'. Out of these large number of invoices and bills hardly two relate to the note books and sharpeners. These Indus exercise books find place in invoices of the year 1986. On the other hand the defendants have produced various documents to show that they have been manufacturing and selling exercise books and note books with the word 'Indus' printed on it alongwith their monogram containing the letter 'IC'. From these facts prima facie it seems that from the date when the trade mark was registered on 17-12-1958 till 1985 the plaintiff has not produced note books of exercise books with its registered mark. However, the defendants have established their business in 1976 and are continuously producing note books, registered, exercise book with the word 'Indus' printed on it without any objection for about ten years.
6. ' Mr.Iqbal Kazi the learned counsel for the defendants has contended that the defendants are using their trade name, and therefore, it cannot be treated as an infringment. In this regard the learned counsel has referred to section 26 of the Trade Marks At which provides as follows:-
26. "Saving for use of name, address or description of goods:- No registration of a trade mark shall interfere with any bona fide use by a person of his own name or that of his place of business, or of the name of the place of business, or any of his predecessor in business, or the use by any person bon fide description of the character or quality of his goods being a description that would be likely to be taken as importing, any such reference as is mentioned in clause (b) of section 2. Or in clause
(b) of section 57".
7. ' Under this provision the registration of trade mark will not interfere with any bona fide use by a person of, his own trade name or name of place of business provided it is made bona fide and without any mala fide intention. In this regard the learned counsel has relied on National Electric Fan Gujrat v. Shaikh Mohammad Younus Sons Ltd. Lahore, 1980 SCMR 97 where referring to section 26 the following observation was made:- ' "It is clear from this section that the owner of a registered trade mark cannot prevent other persons from trading in their own names provided they do not act dishonestly in so doing".
8. A proprietor of a registered trade mark cannot prevent another person from trading in his own name provided such trade name which is the same, or similar to the registered trade mark has not been adopted mala fide and dishoneslty. No one is entitled to carry on his business even under his trade name dishonestly in such a way that it represents that he is connected with the business of another or creates confusion with the business of another.
9. ' Prima facie the defendants have been using the mark 'Indus' with their monogram on their exercise copy, books, registers and sharpeners for the last about 10 years without any objection from the plaintiff. From the documents produced by the plaintiff it seems that it is mostly engaged in producing pencils and ball point pens. The production of exercise book seems to be a recent activity of the plaintiff. During this period of 10 years the defendants have established their business of ,producing exercise books, note books, and register which the plaintiff was not producing. Even the sharpeners sold by the plaintiff are imported sharpeners packed in containers printed with the word 'Indus' sharpener. This cannot be treated as a product of the plaintiff. The plaintiff has delayed the action for a period of about ten years and in such cases delay is fatal to the grant of interim injunction. Reference can be made to 1980 SCMR 97. However, the plaintiff is proprietor of a registered trade mark 'Indus Pencil' and as prima facie the defendants have not acted mala fide it would be appropriate to maintain balance between the rights of both the parties. I would, therefore, permit the defendants to manufacture exercise books, registers and other similar goods and sharpeners with their name Indus Corporation or Indus Copy House printed on it. Henceforth the defendants will produce and monogram their exercise books etc. With their trade name namely Indus Corporation or Indus Copy House till the final disposal of the suit. The application is disposed of in these terms.