1. Mr. Faiz Issa states that he had filed J.M. 29 of 1999 with an apprehension that registration certificate in favour of respondent No,1 was issued and since now the position has become clear he will withdraw J.M. 28 of 1999. In view of this statement, C.M.A. 1123 of 1999 stands disposed of.
1. 2 and 3. This appeal has been filed under section 76 of the Trade Marks Act, 1940 against the decision of Registrar, Trade Marks made on 4th May, 1999, whereby he disallowed the notice of opposition (T.M.-5) of the appellant and allowed the application of respondent No,1 to proceed to registration. Alongwith the appeal Qazi Faiz Issa has also filed an application under Order XLI, Rule 5 read with section 151, C.P.C. (C.M.A. 1048 of 1999) for stay of the impugned decision of the Registrar pending disposal of this appeal. The appellant which is a Limited Company-incorporated in Japan and is a manufacturer of domestic electric appliances like Air-Conditioner etc., which are sold worldwide under the name "General". The trade mark was registered in the name of the Company in Pakistan in 1981 and it is valid up to 2003. The respondent No,1 is also a manufacturer of similar appliances and they applied for registration of trade mark label consisting of letter, 'M' with the word "General", under the Application No,136427.
2. To this application, the appellant filed opposition through their agent M/s. Bharucha & Co. This notice of opposition was disallowed vide impugned decision which has been challenged in this appeal.
3. The learned Advocates appearing on both sides referred to other litigation between the parties about the Trade Mark. One civil suit has been filed by the present appellant in which an order of injunction was passed but its operation has been suspended. J.M. Nos,19 and 20 have been filed by the respondent and J.M. 28 has been filed by the appellant, which Qazi Faiz Issa states that he will withdraw. Since the parties have multiple litigation between them about the matter, the learned counsel travelled beyond the scope of this matter in their arguments. The question here is whether an appeal lies from the impugned decision of the Registrar, dated 4th May, 1999 and whether there is a case for stay of the proceedings before Registrar pending appeal. The learned Registrar has disallowed the notice of apposition of the present appellant on two grounds, first, and mainly, that the Power of Attorney (T.M.-48) filed by Mr. M. F. Bhatucha in this case with T.M.-55 dated 25-10-1997 does not authorise them to file opposition to the registration of Trade Mark Application No,136427 of the applicants, and secondly that the word General has become public juris and is common amongst a number of trade marks. The learned Registrar has mentioned that the Power of Attorney authorised the firm Bharucha & Company to jointly and severally, as agents, for attending to all Trade Marks matters. According to him, this was not sufficient and specific authorization to file opposition to this application should have been made. An authority to attend all trade marks matters of the Principal is a specific authorization which obviously covers filing of opposition to an application affecting their trade mark. A power of attorney is not needed for every step of proceedings or an action. Khawaja Mansoor contended that General is common word and therefore, respondent cannot be refused it as a trade mark. The other ground for rejection, that General is common, is also without weight because it is the overall shape of the trade mark that is material, and the test should be whether a person with ordinary prudence would be deluded by the mark. He further contended that the appellant is not manufacturing Air-Conditioners etc. In Pakistan and has not used the trade mark for more than five years and, therefore, appellant's trade mark may be removed. The question of removal of trade mark of the appellant is not in question in this appeal and was also not a subject of the impugned decision. Khawaja Mansoor also contended that the Registrar, being a technical expert, has a legal discre tion to decide and his discretion should not be interfered with.
4. Registrar Trade Marks, of course, has a legal discretion, but it cannot be exercised arbitrarily and where he deviates in its exercise from a judicial manner High Court can intervene and this is why the Law has provided for an appeal.
5. Since the impugned decision does not appear to be based on sound reason, further proceedings on its basis would not be just and proper. The appeal is, therefore, admitted and the proceedings before the Registrar are stayed till disposal of the appeal. Call for record and proceedings in the matter. C.M,A. No,1048 of 1999 stands disposed of.