' Through this appeal order, dated 20-12-2000 passed by learned Additional District Judge-II, Quetta, was challenged whereby appellants were restrained from manufacturing and selling of Gas Appliances under the style and name of "YESGAS" till final disposal of the suit.
2. Concise facts regarding filing of appeal are that plaintiff (hereinafter called respondent) filed a suit in the Court of Additional District Judge-II, Quetta, against the defendants (hereinafter called appellants) for Permanent Injunction praying to restrain them from copying the registered Trade Mark 'NASGAS" being identical and resemblance to the gas appliances known as "YESGAS" of appellant. Plaint was accompanied with application under Order 39, Rules 1 and 2 C.P.C., interim order was passed on 18-11-2000. After notice appellants filed their written statement and rejoinder to the application, wherein they challenged the maintainability of suit on various grounds and also denied and strongly repudiated the contents of plaint on merits. It was claimed that the appellants are using the Trade Mark under the Certificate issued by the Registration Authorities in their favour.
After hearing arguments on stay application trial Court confirmed his earlier interim order on 20- 12-2000. Being aggrieved from the order impugned herein, instant appeal was filed.
3. Mr. Kamran Murtaza Advocate appearing on behalf of appellants argued that appellant No,1 is holder of Registered Trade Mark in the name and style of "YESGAS", therefore, he is entitled to carry on the business as such no injunction of any nature can be granted to the respondent. He further argued that the trial Court wrongly construed as the appellants Trade Mark is likely closed to that of respondent's Trade Mark and nearby resembling deceive the business of respondent and its customers as well as General Public. It was further contended that both the Trade Marks are substantially different and not similar to each other. He prayed for setting aside of the impugned order as the same has been passed on misappreciation of facts and documents. He relied on the following case-laws:---
(1) 1998 M LD 1234, 1992 CLC 1728, 1989 SCM R 361, PLD 1996 Kar. 122 and PLD 1973 SC 104.
4. Mr. Muhammad Riaz Ahmed, Advocate appeared on behalf of respondent and contended that the appellants Trade Mark of "YESGAS" is very much in resemblance with respondent's Trade Mark of "NASGAS", therefore, his business, customers and General Public being deceived by the resembled Trade Mark. The respondent is using the Trade Mark of "NASGAS" from 2-4-1978 under Registration of Trade Mark from Registrar of Trade Marks Registry, Karachi, while appellants have started business under the Trade Mark of "YESGAS" in recent without having any registration with the Registration Authorities, on such account respondent is loosing the business the business reputation amongst the General Public, made and built years of hard-work. In the last he prayed the order was passed just in accordance with law and may not be disturbed till final disposal of the appeal.
5. I have heard the arguments of learned counsel for the parties and have minutely perused record of the case. The respondent's Trade Mark was found registered with trade marks Registry Karachi under section 16(2), Rule 44 of Trade Marks Act, 1940 (Act No,V of 1940) in the name of National Aviation Services Limited, being No,67115 on 2-4-1978 in respect of heating, steam generating, gas cooking ranges, water heating, room heating, gas griller and urns, all being goods include in class- II, and is being used continuously, extensively and has always been very prominently depicted on the Gas appliances, which have always been seen by the purchasing public at the time of purchase, whereas the depiction of the distinctive "YESGAS" has facilitated non-English reading/illiterate and unwary public to instantly identify the same. The appellants made application for Registration of Trade Mark of "YESGAS" with Trade Marks Registry Karachi, vide No,163982 in Class II on 22-6-2000 and accordingly a Certificate/Memorandum was issued vide No . TM . 3818/2000, dated 30-11-2000, showing that the case of appellants regarding registration of Trade Mark "YESGAS" is still pending for decision in the name of Muhammad Saeed Shahid claimed to be the Proprietor of said Trade Mai k. The obtaining of Trade Mark of "NASGAS" was not denied by the appellants in Para. No,8 of the written statement, however, it was alleged that the respondent started manufacturing the business of gas appliances from 1995. It was also claimed by the appellant that he obtained the Factory premises of the respondent situated at G.T. Road, Gujranwala on rent, and started manufacturing of gas appliances under agreement of "NASGAS", however, in the year 1999 the tenancy agreement was dissolved and the premises was given back to respondent, accordingly manufacturing agreement was also came to an end and the machinery installed in the premises were sold out to the respondent. I am fortified by the dictum laid down in the case titled l-Iakimullah Siddiqi v. Messrs Alhaco (Pakistan) Karachi, reported in 1987 M LD 2569 which is reproduced herein below for ready reference:--- "What he has got to do is best described in the case. 'In the matter of an application by the Planotiest Company Ltd. (1906) 23 R.P.C. 774', as follows:--- ' You must take the two words. You must judge of them, both of their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks. If, considering all those circumstances, you come to the conclusion that there will be a confusion--- that is to say, not necessarily that one man will be injured and the other will gain illicit benefit, but that will be a confusion in the mind of the public, which will lead to confusion in the goods---then you may refuse the registration, or rather you must refuse the registration in that case.'
' Similarly, while dealing with the question of deception in the case of Messrs Khan Foundry and Workshop, Faisalabad v. The Registrar Trade Marks Registry, reported in PLD 1994 Kar. 157 the Court held that:--- "It may be stated that while deciding the question of similarity between the two marks, they have to be considered as wholes. There may be two words which in their component parts seem quite different but which, when read or spoken together, do represent something which is so similar as to lead inevitable to confusion, as has been observed by Justice Farewell in the matter of an application by William Bailey (Birmingham) Ltd. (1935) 52 RPC 136)."
' I have examined the case in hand in the light of judgment as mentioned hereinabove, it is worth- mentioning that a similarity has been observed in the Trade Mark i,e, "NASGAS" being used by respondent and that of 'YESGAS" chosen by the appellant, which leads to draw the inference that a successful attempt has been made to confuse and deceive the innocent purchaser and also be detrimental and injurious the reputation and business interest of respondent and thus, can be equated to that of irreparable loss which cannot be compensated in terms of money. I am conscious of the fact that in matter of temporary injunction prima facie case is not only requirement, but a Court is also required to examine the concepts of balance of convenience, irreparable loss, conduct of the parties, nature of the controversy, the time like to be absorbed, the stakes of the parties involved and the workability and reasonableness of the order proposed to be passed. The appellants tried to believe this Court that they were doing business of manufacturing of gas appliances in the name and style of "NASGAS" after registration of the Trade Mark with the competent Authority and dissolution of business, the respondent has right or entitlement to use the Trade Mark of "YESGAS", though resembled and likely and close to the "NASGAS". It was found that the respondent is using or got the right of using Trade Mark of "Nasgas" from the competent authority in- the year 1978 and is entitled to use the same while on the other hand the appellants have only made an application for registration of Trade Mark of "YESGAS" on 22-6-2000 and the application is still pending before the Trade Marks Registry Karachi for decision subject to cross- objections and hearing to respondent. The respective authorities quoted by the learned counsel for the appellants are in variance with the facts of the present case, the same were on the point of dispute regarding the Trade Mark while in the case in hand the Trade Mark of appellant is admittedly not registered with the competent authority. The respondent has made out a good prima facie case in his favour that he has proprietary right to use the Trade Mark allotted in his favour i,e, "NASGAS" by the competent authority and the appellants have no right to challenge the same or to brought any Trade Mark which seems to be resembled or likely and identical that of respondent's Trade Mark i,e, "YESGAS" unless it was not registered under the said law by the authority having jurisdiction. If the appellants were not restrained the respondent would cause irreparable loss, injury and damage to the goodwill, reputation and business by creating confusion and deception in the minds of the consumers/purchasers.
' In the light of what has been discussed hereinabove, the appellants have failed to point out any defect or error in the impugned order, dated 20-12-2000 passed by learned Additional District Judge-II, Quetta, resultantly the appeal being devoid of merit is dismissed with no order as to costs.