' RANA BHAGWAN DAS, J.--- This judgment shall dispose of the aforesaid two appeals as these are directed against an order arising out of Suit No,14 of 1996 passed by the learned Single Judge granting interim injunction against the appellants in terms of Order XXXIX, Rules 1 and 2, C .P.0 .
2. Respondent Ms. Atiqa Odho entered into an agreement to act as Model for appellant R. Lintas (Pvt.) Ltd. On or about 30th November, 1993 for a period of 1-1/2 years. Salient features of the agreement between the parties are that the said Model agreed to be photographed and/or videotaped by R. Limtas Ltd. To enable it to assess the suitability of the Model for advertising "Lux Toilet Soap" manufactured by appellant Lever Brothers Pakistan Limited; that Lintas will notify the Model within four weeks of the agreement whether or not her photographs had been selected for advertising the product and she will not accept any competitive assignments until hearing from Lintas. In the event of Model's photographs being selected for advertising purposes, Lintas agreed to pay a sum of Rs,3,00,000 to the Model as retainer fee for initially agreed period of 1-1/2 years which was extendable for a further period on mutual terms. Upon payment by Lintas and receipt by the Model of the retainer fee Model assigned to Lintas the exclusive rights to use the Model's photographs for advertising the product in all forms of advertising like newspapers, periodicals, printed materials, film, hoardings, neon signs, display panels, packaging materials etc, at any place and to apply for registration of necessary trade mark. In terms of para.5 of the agreement Model declared that she had not modelled and was not currently bound by any such contract for modeling, for advertising competitive products for any other manufacturer in the range of skin care/ consmetics/toiletries. She also undertook not to allow her photographs to be used for advertising for such competitive products during the pendency of this agreement. As per paras. 9 and 10 of the agreement, while Model was to be released of the obligations upon termination of the agreement, all advertising materials produced by the Lintas based on the photographs of the Model were to remain the property of Lintas during the period of this agreement and even after its termination.
3. Upon expiry of the agreement on 30th May, 1995 the respondent Model called upon the appellants to either renew the agreement on mutually agreed terms or to discontinue the use of her photographs and television commercials for advertisement purposes of the product of Lever Brothers who according to the respondent Model had appointed appellant Lintas as its agent for the purpose of advertisement of its products inclusive of "Lux Toilet Soap". Notice was responded by the appellant Lintas taking the position that all the materials produced by them including photographs and advertising materials, would remain their exclusive property even after the termination of the agreement. They further stated that upon expiry of the agreement respondent Model was free to undertake modelling assignment for other companies and would be deemed to have been released from her obligations. Agreement did not preclude Lintas from continuing the use of advertising materials prepared under the agreement as long as they deemed commercially appropriate, appellant urged.
4. In the suit for permanent injunction and damages respondent Model averred that she believed that the contention raised by the appellant Lintas on behalf of Lever Brothers was without the authority of the latter who was either willing to renegotiate the agreement or to discontinue the use of her photographs and T.V. Commercials for the purposes of advertisement. She further sued both the appellants for a permanent injunction seeking to restrain them from using of her photographs or any video tape for advertising Lever Brothers' Lux Toilet Soap in any form of advertisement. She calculated the damages from June, 1995 till filing of the suit at the rate of Rs,1,00,000 per month and from June, 1996 till May, 1997 at the rate of Rs,2,00,000 per month. She claimed a sum of Rs,7,00,000 upto December, 1995 by way of royalty and from January, 1996 onwards at the rate stated above.
5. Alongwith the suit, respondent moved an application for interim injunction which was seriously controverted by appellant Lintas through a counter-affidavit and was resisted at the hearing before the learned Single Judge by appellant Lever Brothers as well Upon hearing learned Single Judge formed the view that the appellant may be entitled to retain all advertising materials upon which the picture, image or photograph of the respondent Model was printed and published but they were not entitled to use the same for public consumption in any periodicals, newspapers, T.V.
Or film after the termination of the agreement. He was also of the view that in case interim relief was refused, respondent may be deprived of her livelihood and, thus, suffers an irreparable loss. It is as against this order that the aforesaid appeals were filed.
6. At the hearing Mr. Munawar Ghani learned counsel for the appellant (Lever Brothers Pakistan Limited) whose arguments were adopted by Mr. Ghulam Abbas Pishori, Advocate for appellant (Lintas) contended that the terms of the agreement did not create any embargo and restriction upon the use of advertising material including the photographs and the T.V. Commercials of the Model even after termination of the agreement. Learned counsel referred to paras. 4 and 10 of the agreement in support of his contention. While para. 4 stipulates that upon receipt of the retainer fee by the Model she assigns to Lintas the exclusive right to use the Model's photographs for advertising the product in all forms of advertising like newspapers, periodicals, printed materials, film, hoardings, neon signs, display panels, packaging materials etc. At any place and to apply for registration of necessary trade mark, para. 10 unequivocally proves that all advertising materials produced by Lintas based on the photographs of the Model will remain the property of Lintas during and even after termination of the agreement.
7. Conversely, Mr. Arshad Tayyebaly learned counsel for respondent No,1 in both the appeals heavily relied upon para. 8 of the agreement stipulating that the agreement will remain in force for a period of 1-1/2 years from the date thereof unless terminated earlier as per clause (2) which para. Prescribes the period of four weeks for selection of advertising product failing which the agreement was to become void. Learned counsel also referred to para. 9 providing that the Model will be released of the obligations under the agreement upon termination thereof. Learned counsel urged that the use of expression "property" in para. 10 of the agreement relating to advertising material produced by appellant Lintas based on the photographs of the Model did not authorize the appellant to use such material for indefinite period long after the termination of the agreement.
There was, however, consensus of opinion that entire advertising material produced by Lintas founded on the photographs of the Model was to remain property of the appellant Lintas even after termination of the agreement. Taking a rational and analytical view of the terms of the agreement, we are unable to subscribe to the view propounded by the respondent and entertained by the learned Single Judge that while appellants may be entitled to retain all advertising materials founded upon the picture, image or photographs of the respondent, they were not entitled to its use for advertising purposes after termination of the agreement. Indeed retention of the property without its use is of no significance and would not carry any meaning. In view of assignment of all the rights in favour of the appellant Lintas including a right to apply for registration of necessary trade mark, it seems quite clear that the intention and object of the parties was to confer proprietory rights on the use and advertisement of Model's photographs etc. For an indefinite period whereas for a period of 1-1/2 years from the date of agreement she was precluded from undertaking such contract for modelling and advertising in respect of competitive products of any other manufacturer in the range of skin care, cosmetic and toiletries. The circumstances, that proprietary rights were conferred upon Lintas not only during the subsistence of the agreement but also even after its termination speak volumes with regard to the intention of the parties which did not restrict the use of advertising materials, T. V. Commercials etc. By the appellant who had undisputedly parted with valuable amount of Rs,3,00,000 for retaining the services of the respondent restricting her modelling activities for any other competitor for a period of 1-1/2 years.
8. There is another aspect of the case. By reason of para. 4 of the agreement upon payment of retainer fee to the respondent, appellant Lintas besides acquiring other rights in the property also acquired the right to apply for registration of necessary trade mark of the products for appellant Lever Brothers. In terms of section 24 of the Trade Marks Act, 1940 original registration of the trade mark shall be taken to be valid in all respects after the expiration of seven years from the date of original registration unless it was obtained by fraud or it offended against the provisions of section 8 of Act V of 1940. Since the appellant had been assigned the right to apply for registration of its trade mark, it can hardly be accepted that the rights to property were confined to retention without any use and utility thereof.
9. No other point was urged on behalf of the respondent in support of the order which in our view suffers from misappreciation of terms of the agreement between the parties. With profound regards to the learned Single Judge,, therefore, we are constrained to recall the aforesaid order and allow both the appeals with no order as to costs.