JUDGMENT IHSAN-UI.-HAQ CHAUDHARY, J.- The relevant facts for the decision of this appeal against order are that the appellants and respondents are manufacturers of laundry soap. Respondents No. 1 add 2 filed a suit for declaration to the effect that the defendants are not entitled to sell their goods under the trade mark similar to that of their. It was pleaded that the plaintiffs are manufacturers of laundry soap under the trade name of Gai Soap' and their trade mark is duly registered. It was added that the respondents in order to reap the benefits of the publicity of the brand of the plaintiffs introduced in the market soap under the brand of the Bhains Soap'. It was added that wrapper, picture of the animal, colour scheme, design get up are all similar to that of the plaintiffs. The main suit was accompanied by an application under Order XXXIX Rules 1 and 2 read with section 151 CPC for restraining the defendants from imitating the trade marks particular of Gai Soap', 'Do Gai Soap' and 'Lai Gai Soap' or any other similar trade mark, which is imitation of the design and the packing etc. Of the product of the plaintiffs. The appellants contested the suit as well as application. The trial Court after hearing the arguments proceeded to allow the application vide judgment dated 21.3.1995 which has been assailed through the present appeal. The same was admitted to hearing, record was requisitioned and notices were issued to the respondents.
Respondents No. 1 and 2 have appeared and contested the appeal while respondent No. 3 is absent in spite of notice, therefore, proceeded ex parte.
2. The learned counsel for the appellants argued that the suit was incompetent having not been filed by a competent person it was added that plaintiff No. 1 is a limited company, therefore, suit could be filed only by a person on its behalf, who was appointed by the company through a special resolution. The learned counsel in this behalf referred to Khan Iftikhar Hussain Khan of Manuiot r.
Messrs Ghulam Nabi Corporation Ltd., Lahore (PLD 1971 SC 550), M/s. Standard Hotels (Private) Ltd. v. M/s. Rio Centre and others (1994 CLC 2413) and Messrs Ideal Life Insurance Co. Ltd. And another v.
Mst, Kairunnisa A.G. Mirra (1980 CLC 1375). It was argued that firm of appellants was mala fide sued through Malik Muhammad Ramzan, who has nothing to do with business of the appellants. It was added that it was in fact a trick to get a collusive decree. It was submitted that this Legal defect was pointed out still the plaintiffs when filed the amended plaint the appellant firm was sued through Malik Muhammad Ramzan. The next argument was that the Faisalabad Court has no jurisdiction in the matter as the appellants were carrying on business at Multan and if any infringement of the trade mark of the plaintiffs is concerned the jurisdiction would be that of Multan Court. In this behalf, the learned counsel has referred to Illustration (b) to Section 20 CPC and relied on The Board of Control for Cricket in Pakistan v. Messrs Sindh Cricket Association. Hyderabad (1980 CLC 683). The Other argument was that there is no infringement of violation of the trade marks of the plaintiffs as neither the appellants are using the trade names of the product of the plaintiffs nor name of the company nor there is otherwise any violation. It was added that the picture of buffalo was registered at serial No. 4217 on 17.4.1994 under Copyright Ordinance. 1962, therefore, they have every right to use the same and plaintiffs had no cause of action against them. The learned counsel in this behalf referred to sections 3, 13 of the Copyright Ordinance. 1962(hereinafter to be referred as Ordinance 1962) and relied on the judgments in the cases reported as Pakistan Tobacco Company Limited v. West End Tobacco Company (1992 CLC 1728) and Seven-Up Company v. Assistant Registrar of Trade Marks-H (1992 CLC 694). It was argued that the appellants were manufacturing soap under different names since 1974, therefore, entitled to use the same u/S. 26 of the Trade Marks, Act. 1940 (hereinafter to be called as Act of 1940). In this behalf, he has referred to section 21 of the Act, 1940 and relied on the judgments in the cases of the National Electric Fans Manufacturers (Regd.) (Injrat v. S. Muhammad Din & Sons Ltd., Lahore (1980 SCMR 97) and Allah Ditta v. Ghulam Nabi alias Nabi Bakhsh and others (1980 SCMR 360).
3. On the other hand, the learned counsel for respondents No. 1 and 2 argued that the plaintiffs were manufacturing soap under the trade name of Gai Soap since 1976. They got the trade mark No. 72142 registered on 7.7.1980. Thereafter they got the same amended and the new trade mark was registered at No. 81185 on 20.10.1982 while the appellants as per their own showing entered into the soap business in 1985. It was added that according to the partnership deed dated 11.6.1978 the manufacturing of soap was not one of the business to be pursued by the appellants' firm. It was submitted that the appellants started making use of the goodwill of the trade name of the plaintiffs and they immediately coming to know of this piracy proceeded to pass a resolution on 12.9.1993 whereby Sh. Muhammad Munawar was authorised to file the suit, which was filed on 13.9.1993. It was argued that issue of jurisdiction was decided by the trial Court vide judgment dated 23.1.1995 was not assailed in any forum, therefore, it has attained finality. The same issue, therefore, could not be agitated once again in this appeal. It was argued that the Ordinance of 1962 deals with different subjects while Act of 1940 deals with the trade marks. It was added that size of the both the marks, colour scheme, get up, design, print were almost similar, therefore, the appellants would be guilty of infringement of he trade mark of the plaintiffs. In this behalf, the learned counsel referred to Muhammad Fazil v. Messrs Ashfaq Brothers. Karachi (1981 CLC 1519). It was added that wrapper, design etc. Were identical which were likely to deceive common man. Therefore, it would be infringement. In this behalf, learned counsel referred to Abdul Jabar and another v. Ahmad Jan (PLD 1973 Karachi 289), Insaf Soap Factors r. Lever Brothers Port Sunlight Ltd., (PLD 1959 (W.P.) Lah.
381) and Telephone Soap v. M/s. Lever Brothers (1994 CLC 2135). It was argued that similarities and dissimilarities would not be relevant to decide the question of infringement of a trade mark but the general get up is the relevant factor. In this behalf, learned counsel referred to Messrs Burney's Industrial and Commercial Co. Ltd. v. Messrs Rehman Match Works (PLD 1983 Karachi 357) and Messrs K.S. Sulemanji Esamilji & Sons (Pvt.) Ltd. v. Messrs M. Sulemanji & Company (Pvt.) Ltd. (PLD 1988 Karachi 569), It was argued that the rule as to piracy of design has been laid down in the cases reported as Messrs K.S. Sulemanji Esmailji & Sons v. Messrs M. Sulemanji A Company Ltd.
(1986 CLC 775), National Detergents Limited v. Mod International (Pvt.) Ltd. (1993 MLD 590) and Juggi Lai Kantalapai of Cawnpore and others v. The Swadeshi Mills Co. Ltd. Of Bombay (AIR 1929 Privy Council 11) and the rule laid down therein is fully applicable to the case of the plaintiffs. It was added that the trade mark is to be protected, therefore, the trial Court rightly issued the injunction.
The learned counsel in this behalf has referred to Syed Muhammad Maqsood v. Naeem Ali Muhammad (1985 CLC 3015), Muhammad Haroon and another v. F.Y. & Brothers and another (1986 MLD 930), Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant (1987 SCMR 1090) and Rexona Proprietary Ltd. w Majid Soap Works (PLD 1956 Sindh 1). It was submitted that the plaintiffs came to know to infringement in July 1993 when they received complaints from their dealers and they proceeded to file the suit in September, 1993, therefore, there was no delay. It was explained that they delay itself would otherwise not fatal. In this behalf, the learned counsel referred to Shri Swaran Singh Trading as Appliancies Emporium v. M/s. Usha Industries (India) New Delhi and another (AIR 1986 Delhi 343). It was argued that this Court will not interfere in the discretionary order of the trial Court merely because another view is possible. In this behalf, the learned counsel referred to M/s. Cadila Laboratories (P) Ltd., Ahmedabad and another v. M/s. Kamaili Atul & Co., Nellekeri, Kumta (AIR 1991 Karnataka 303). Thereafter he referred to the principles governing the grant of interim injunction in the trade marks cases. It was argued that the injunction was rightly issued by the trial Court keeping in view the principles laid down by the superior Courts. In this behalf, the learned counsel referred to P.L. Anwar Baslia v. M. Natarajan (AIR 1980 Madras 56), M/s. Pidilite Industries (Pvt.) Ltd. v. M/s. Mittees Corporation and another (AIR 1989 Delhi 157) and M/s. Hindustan Radiators Co. v. M/s. Hindustan Radiators Ltd. (AIR 1987 Delhi 353). It was argued that the appeal was incompetent and Liable to be dismissed as the appellants before filing the appeal did not serve the respondents-plaintiffs with notice under Order XLJII rule 3 CPC. In the end it was argued that the plaintiffs were spending huge amounts on publicity of their product and they have placed on record statement for the last five years. It was added that turnover of their business could be imagined from the amount of income tax paid by them.
4. The learned counsel for the appellants while summing up the arguments submitted that since the appeal was admitted to regular hearing, therefore, non service of notice is not fatal. It was added that the appellants have spent substantial amounts in introducing their product in the market and the suit has only been filed to deprive them of the fruits. They have also placed on record the income tax assessm ents and the amounts spent on publicity.
5. I have given my anxious consideration to the arguments the learned counsel for the parties, gone through the record, relevant provision of law and precedent cases. It is made clear at the very outset that the appeal is only directed against the acceptance of injunction petition while the main suit is still pending and is to be decided in accordance with the evidence to be produced by the parties, therefore, it is not desirable to trench upon the merits and demerits which are to be decided by the trial Court while deciding the main suit. It is for this reason that I will not refer to the judgments on merits relied on behalf of both the parties. The suit does not suffer from any inherent defect rendering it incompetent. The objection that it has not been filed by a competent person stands prima facie controverted by the resolution dated 12.9.1993 whereby company authorised Sh.
Muhammad Munawar to file the suit. The other objection that the Faisalabad Court has no jurisdiction has since been decided by the trial Court vide order dated 23.1.1995, which was not assailed, therefore, attained finality. The plaintiffs had a prima facie case as their trade mark was duly registered under the Act, 1940. This is not all. As per own showing of the appellants they have been manufacturing soap under the different brands, namely.
It is clear from the wrapper, the picture, the general get up of the packing of two products that a common man is likely to be deceived. The learned counsel for the respondents rightly relied on the case of Muhammad Fazil (Supra). This is a judgment by the Hon'ble Chief Justice of Pakistan as his Lordship was at that time. The injunction was issued by the trial Court and the appeal of the defendants was dismissed. The relevant portion of order of trial Court reads as under:- "........ From this comparison I have formed the opinion that both labels are very closely similar and can cause confusion and deception in the mind of unwary purchasers "
In this case in hand the trial Court before granting the application for temporary injunction concluded as under:- "2...... And they also appended lables of their prepared soaps with the name of Cow Soap etc. Along with imitated stickers with the style of 'Bhains Soap' and a comparison of these stickers of soaps prepared by the parties prima Jade proves that present respondents are imitating the lables of Gai Soap of present plaintiffs/petitioners and they are also exfacie copying the monogram as well, along with colour scheme, design and get-up,...."
It is interesting to note that the learned counsel for the appellants was asked as to which breed of buffalo is depicted on the wrapper of their product. The learned counsel failed to refer any breed of the buffalo of which picture appeared on the product of the-' appellants. So far our country is concerned there is no buffalo of red colour with white spots. The picture on the wrappers of the product is of cow hut described as buffalos by the appellants prima facie in order to create confusion. The next case relevant for the purposes of temporary injunction would be the case of Abdul Jabar and another (Supra), which was noted and followed in the judgment of Muhammad Fazil. While in the case of Insaf Soap Factory (Supra) it was Held that in cases of infringement of trade mark the test is whether 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. The other relevant judgment is in the case of Telephone Soap which is also a case of infringement of trade mark of soap. The injunction was issued by the trial Court and the appeal was dismissed by this Court. The entire law on the point was examined in the case of Messrs K.S. Sulemanji Esmailji & Sons (Pvt.) Ltd. (Supra) by Mr. Justice Nasir Aslam Zahid. As his Lordship then was and after holding that the wrappers of the defendants resemble to that of the plaintiffs the injunction was issued.
Adopting the physology employed by the learned Judge it is Held that prima facie the mark of the defendants is likely to deceive the average customer of the plaintiffs product in question. The plaintiffs have alleged and prima facie proved infringement of their trade mark, therefore, have a prima facie and arguable case. The balance of convenience is also on their side because the appellants are as per their own showing manufacturer of almost more than half a dozen of other brands, therefore, neither they would suffer any inconvenience nor any loss. If they are restrained using the brand name in dispute. The trial Court has exercised its discretion on sound reasons. The appellants have failed to make out case for interference.
6. Now coming to the requirement of rule 3 the appellants should have taken following steps before presentation of the appeal in this Court:-
(1) Given a notice of appeal to the respondent or its counsel;
(2) Delivered copy of the memorandum and grounds of appeal together with a copy of order impugned;
(3) Obtained an acknowledgment of receipt for the information of this Court;
(4) They should have submitted an affidavit of service to show that notice of appeal has been received and copy delivered to the respondents; and
(5) Appended with the affidavit acknowledgment receipt.
7. The learned counsel for the appellants straightaway submitted that notice was not served.
However, it was maintained that since the appeal has been admitted to hearing and respondents have appeared, therefore, non service of notice is of no Legal consequence. I am conscious of the fact that in the case of Mrs. Dino Manjekji Chinoy and 8 others v. Muhammad Matin (PLD 1983 SC 693) and Fateh Muhammad v. Muhammad Hanif (PLD 1990 Lahore 82) irregularity in the sendee of notice was ignored and it was Held that there was sufficient compliance with this mandatory provision of notice but in the present case there was even no effort to comply with the pre- requisite condition of service of notice. The result of this non compliance was that the respondents could not appear at the limine stage to contest the appeal and this way valuable right conferred by the statute upon them was lost.
8. Maximum care has been taken not to express any opinion on the merits of the suit. Still it is made clear that all above FINDINGS, conclusions and observations are tentative in nature and the trial Court would not be bound by the same while deciding the main suit on merits.
9. The upshot of the above discussion is that this appeal is dismissed both on merits as well as incompetent wit costs and the trial Court is directed to decide the suit expeditiously and in any case by 30.11.196 even if it has to proceed day to day.