This appeal against the order of the Registrar of Trade Marks, respondent 1, dated the 3rd June, 1984, dismissing the appellant's application for registration of its mark Philip for sewing machines in class 7 of the goods by accepting the opposition of respondent 2 arises out of the following circumstances. On the 3rd June, 1980, Messrs Alpha Sewing Machine Company, Lahore, the appellant, filed application with the Trade Marks Registry for registration of its trade mark Philip for sewing machines. The appellant claimed user of the mark since 1974. Messrs Philips Export B.V.
Groenewoudseweg 1, Eindhoven, The Netherlands, respondent 2, a limited company being assignee and part of N.V. Philips Gloeilampenfabrieken, which owns and controls international group of companies, opposed the registration of the appellant's trade mark. It stated that it was the proprietor of the trade mark Philips which had been registered in Pakistan on the 21st March, 1951, in respect of machines, machine tools and motors (except for vehicles) including magneto electric welding machines, goods belonging to class 7. It maintained that the products bearing the trade mark Philips were being continuously sold in the local market and by virtue of continued and extensive use its products had become very popular and that the trade mark Philips was associated with none else than itself. It pointed out that its trade mark Philips was nearly identical with the appellant's Philip and the goods of the parties being of the same description it could be inconvenienced and embarrassed if the appellant's mark was registered as in that event the appellant's goods would be mistaken and sold and passed of as those of its manufacture. It averred that by reason of prior registration and use of its mark Philips the appellant's mark Philip was not adopted to distinguish the appellant's goods within the meaning of section 8 (a) of the Trade Marks Act, 1940. It stressed the danger of confusion and deception cropping up from the registration of the appellant's mark and its consequent use.
2. The appellant denied respondent 2's allegations and contended that it had, adopted the trade mark `Philip' for manufacturing and selling of sewing machines and their parts in 1974 and since then it had been continuously and extensively using the same throughout the length and breadth of the country without any let or hindrance from any quarter and that its mark' had acquired distinctiveness amongst the public. It stated that respondent 2 was not using its mark Philips in respect of sewing machines or its allied goods in class 7 and that the goods of the contesting parties being of different specifications its apprehension regarding use of mark Philip in respect of sewing machines would cause confusion and deception was ill-founded.
3. Before the Registrar of Trade Marks respondent 2 filed copies of innumerable balance sheets, invoices, bills of lading and publicity material as also affidavit of its director, Mr. J.W. Schmidt, indicating sale figures from one million to thirty million dollars per year from 1977 till 1981. The Registrar was not satisfied with the material placed on the record by the appellant to accept at face value its sale figures. He remarked that the sale figures in the affidavit were not supported by income-tax returns though they showed a taxable income. He observed that the entire evidence filed by the appellant in support of its claim was doubtful and not worth reliance to upset or to encroach upon the worldwide reputed trade mark of respondent 2.
4. As the perusal of the impugned order shows the appellant was not able to convince the Registrar as to why and how it had adopted the mark Philip when it was neither of local dialect nor being used by any class of community except that it was trade mark belonging to respondent 2. The Registrar noticed that the word Philips had been widely introduced by respondent 2 primarily for electric goods, like radio, television and refrigerator, etc., and the mark was on the trade marks register since 1951. He considered the adoption of the mark by the appellant to be unjustifiable and tainted with mela fide intention to defraud the unwary purchasers. He concluded that in order to maintain the purity of the trade mark register it was necessary to see that no two trade marks were to be on the register for goods which were of common description. Agreeing with the contentions of respondent 2 he accepted its opposition and dismissed the appellant's application.
5. Indisputably respondent 2 is the proprietor of the trade mark Philips. The appellant has not been able to show any connection with the mark Philip which it wishes to get registered. It seems that it adopted the word Philip simply because it was almost identical with respondent 2's mark Philps.
6.When questioned the learned counsel for the appellant was not in a position to produce copy of any income-tax return of taxable income filed by the appellant or to give proof of payment of income-tax touching user of the mark Philip remanufacture and sale of sewing machines since 1974 as claimed by the appellant. In such a situation the appellant's alleged use of the mark in producing and marketing the sewing machines in substantial quantity cannot be accepted at face value. '
7. The learned counsel for the appellant laid great stress upon the point that the appellant's goods, namely, sewing machines, were not the same as respondent 2's goods in respect of which the trade mark Philips had been registered and further that the two sets of goods were of different descriptions and consequently the prohibition of section 10 (1) of the Trade Marks Act, 1940, did not stand in the way of registration of the mark Philip in relation to the appellant's goods. For permitting identical trade marks in respect of different goods or goods of different descriptions he referred to the authorities reported as Kaiser Jeep Corporation v. Saber Saleem Textile Mills Limited PLD 1969 Karachi 376, Sony Kabushiki Kaisha v. Registrar of Trade Marks, Karachi PLD 1978 Karachi 161 and Montres Rolex SA. v. Assistant Registrar of Trade Marks PLD 1987 Karachi 199.
8. The learned counsel for respondent 2 made earnest effort to show that the appellant's use of the mark Philip would cause deception and confusion in the minds of the purchasers who would take its products as those of respondent 2. He contended that respondent 2's products were known and were being sold worldwide especially under its registered trade mark Philips for over a century and that with extensive publicity and advertising done by respondent 2 its trade mark Philips has become known to almost every citizen of Pakistan and was practically a house-hold word and, therefore, any customer's first impression would be that the sewing machine manufactured sold by the appellant with the mark Philip thereon had actually been manufactured by respondent 2. He cited amongst others Eno v. Dunn (1890) 7 R.P.C. 311, Eastern Photographic Material Company Limited v. John Griffiths Cycle Corporation (1898) 15 R.P.C. 105, Aluminium Products Limited v.
Registrar of Trade Marks PLD 1958 Dacca 481, Monsanto Company v. Gul Ahmed Textile Mills Limited PLD 1968 Karachi 369, Bata Limited v. Allied Corporation 1986 CLC 1636, Seven-Up Company v. Deputy Registrar of Trade Marks 1987 MLD 91, Consolidated Food Corporation v.
Brandor and Company AIR 1965 Bombay 35 and Sunder Parmanand Lalwani v. Caltex (India)
Limited A.I.R. 1969 Bombay 24 in support of his argument for not granting registration of the mark in the appellant's favour. The contention of the learned counsel is not without force. With the proliferation of means of communication media the names and products of world renowned big companies are catching the eyes and ears of the public at large in all civilised countries of the world and Pakistan is no exception. Extensive travelling abroad in the recent past has made it possible for the people of Pakistan to have knowledge of the internationally renowned companies and their products. Respondent 2 is no doubt a company of world renown and its products are marketed in Pakistan as also in other countries. It is not uncommon now-a-days to find sewing machines being sold at the same shop where household appliances manufactured by respondent 2 bearing trade mark Philips are offered for sale. The contention of the learned counsel for the appellant that the goods of the appellant and respondent 2 are not purchased by the same category of customers as the sewing machines manufactured by the appellant are to be bought by tailors and some of the housewives can be accepted only with a grain of salt. The purchase of sewing machines is not restricted to tailors and housewives; other members of the public do make purchases of sewing machines for various purposes. Also like anybody else tailors and housewives indulge in purchase of domestic appliances manufactured and marketed by respondent 2. If any purchaser of sewing machine were to be offered for sale a machine manufactured by the appellant bearing the mark Philip, he would naturally take it to be a product of respondent 2 and with the image of quality which he has in his mind regarding respondent 2's products he might readily buy it only to find soon afterwards that he had been duped and cheated. There is every likelihood of causing of deception and confusion with the use of the mark Philip by the appellant and in such a case different nature of goods loses relevance.
9.It need hardly be reiterated that the law of registration operates not merely for the benefit of the traders but also for the benefit of the public at large and its main object is to secure free enjoyment of the right of manufacturing and marketing of one's products under one's registered trade mark and also to save the general public from being deceived by the acts of unscrupulous manufacturers and sellers of goods bearing the fake trade marks of others. For maintaining the C purity of the trade marks register and for safeguarding the interests of the public it is the duty of the tribunal administering the law of registration to disallow misuse of another's trade mark by a person like the appellant which is not entitled to use it. The appellant's application was rightly refused by the Registrar. There is no force in this appeal which is dismissed with costs.
A.A./A-942/L