1. ' MUHAMMAD AFZAL ZULLAH, C J.---Leave to appeal has been sought; against the dismissal by the High Court, of First Appellate Order which had arisen out of a case of Trade Mark.
2. ' The petitioner had sought the registration of a Trade Mark popularly known as Philips for its Sewing Machines manufactured in Pakistan.
3. ' Learned counsel has stated and admitted that some of the products of the petitioner's enterprise have been given the name of Alpha--by which the petitioner's Sewing Machine Company is known.
4. We asked the learned counsel again and again that it seems to be a beautiful, well sounding and good name why the petitioners insist on having Trade Mark Philips for their product. But he could not give any satisfactory reply.
5. ' The learned Judge in the High Court noted the relevant facts as follows:-- "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, Endhoven. The Netherelands, respondent No,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 vehicle) 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 off 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".
6. ' After noticing petitioner's plea of denial of what has been stated above and supplementary assertion that they had no intention to encroach upon the world-wide Trade Mark of respondent No,2, learned Judge further noticed the findings by the Registrar which have gone against the petitioner. And after exmaining the arguments advanced from both sides and the case-law cited at the Bar, rendered the following findings of fact:- "With the proliferation of means of communication media the names and products of word 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 sait. 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.
7. "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 purity of the trade marks register and for safeguarding the interests of the public it is 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".
8. ' Learned counsel for the petitioner obviously remained unable to meet the above-referred findings of fact which perhaps might be in accord with his own observation in the open market; nor having been able to give any satisfactory reply as to why in presence of an attractive mark of their own: "Alpha Sewing Machine" Company, the petitioners are keen to have Trade Mark of respondent No,2, urged only a point of law. He contended that our law recognizes and also protects Trade Mark in relation to goods and not independently of goods. Therefore, if the respondent No,2 is not manufacturing Sewing Machines or goods like Sewing Machines, the petitioner could legitimately claim and obtain the registration in question. The proposition is not that simple. Even then the question of deception and confusion could not be ignored as that remains the pivotal point in our law on the issue involved in this case.
9. ' Learned counsel has relied on a recent judgment of this Court in support of the aforenoticed contention. It is Seven-Up Company v. Kohinoor Thread Ball Factory (PLD 1990 Supreme Court 313 at page 345). No doubt it has been laid down as a proposition that the protection of trade mark where it is for the consumer or the owner of the trade mark is essentially relatable to the goods "and not independent of the goods". On this rationale the trade mark Seven-Up for wool, thread, soap, and another trade mark 'Sony' for sports goods, was treated as not having gone beyond the stage where "one can infer a slightest likelihood of deception or confusion to earn protection in a Court of law". The ratio being that the route classification of the goods involved was so vastly different that there was no chance of "deception or confusion".
10. ' But in the same judgment under the same reasoning this Court observed in the case of another disputed trade mark that "as regards "Pan Masala" (Powdered Supari) and Sweet and Scented Supari, there are two conflicting judgments of the High Court. The fact that the Company "7-Up" is a multinational of international repute in the market for beverages and for that reason not likely to engage itself in trading in such an indigenuous product may academically be sound for a marketing analyst but really of no or very little concern to the class of consumers served by these products. Their sale points and outlet points are quite often the same. The consumers served are largely of the same category. Both the products though classified differently for the purpose of trade mark fall, from consumers' point of view, in the same category of light refreshment of "Pep" preparations. Their features do make out a case of there being likelihood of confusion or deception with regard to their source. The applicants for this registration mark had a wide and open field to choose from. They decided upon the trade name of another which also happens to be name of the company which has heavily invested in that trade name and goodwill appurtenant to it. With that real likelihood of deception and confusion it was clearly a case where registration should have been refused".
11. ' The foregoing deeper analysis with regard to two products-- one a Sweet scented chewing material and the other a beverage apparently falling in different class of goods but there being likelihood of confusion and deception "with regard to their source", disentitled the applicant for "7- Up" to registration, under the same law of Registration. In this case the findings by the High Court, with regard to "confusion and deception" are clear and reasoned enough and are covered by the case of "Pan Masala" and "7-Up". Accordingly, we find no merit in this petition. Leave to appeal, therefore, is refused.