This is an appeal under section 76 of the Trade Marks Act, 1940, from the decision of the Registrar of Trade Marks, the respondent No. 1, dated 6-7-1973 rejecting the appellant's opposition and allowing registration of the Trade Mark SONY in the name of respondent No. 2.
2. The respondent No. 2, Remington Sport Limited, a Pakistan Company carrying on business as manufacturer and merchant of sports articles, at Mubarakpura, Sialkot, Punjab, applied for registration of the Trade Mark, SONY, in class 28 in respect of "all kinds of sports goods" under Application No. 49729 dated 11-7--1968 claiming to be the proprietor thereof and that it was in use 'since 1968'. The application was opposed by the appellant, SONY Kabushiki Kaisha, also known as SONY Corporation, a Japanese Corporation of Tokyo, Japan on the main ground that the Trade Mark SONY had already been registered in its name as its proprietor under the Trade Marks Act, 1940 (hereinafter referred to as the Act) under No. 28360 as of 26-12-57 (SONY with device) and No. 34071 as of 22-2-61. (SONY word) both in Class 9 in respect of 'Radios, Television receiving sets, tape recorders etc." and that by reason of extensive use and publicity of the said Trade Mark as well as its trading name "SONY Corporation", tile Trade Mark SONY has become well-known to the public.
Therefore, the appellant contended that the use and registration of the Trade Mark SON 16 by the respondent No. 2 is respect of sports goods, although they are different goods falling in another class, viz., class 28, would be likely to deceive and/or cause confusion among purchasers and enable unscrupulous traders to pass off the same as and for the goods of the appellant. Finally, the appellant submitted that the respondent No. 2 had deliberately adopted the appellant's Trade Mark SONY with the male fide intention of gaining unfairly on the reputation and goodwill earned by the appellant and also that it falsely claimed to be its proprietor. The appellant, therefore, prayed that the application of the respondent No. 2 should be refused under section 8 (a) as well as in the exercise of his discretion under section 14 (1) of the Act.
3. The respondent No. 2 denied the case of the appellant and submitted that the rights obtained by tae appellant by registration and use of the Trade Mark SONY and the reputation and fame acquired by the appellant by use thereof, related only to the trade in radios, television sets and the like and did not extend to the unrelated trade in sports goods. Which goods, were entirely different and denied that any deception and/or confusion was at all possible. Therefore, it contended that in the circumstances registration was not barred under section 8 (a) of the Act. It further denied that it had adopted the Trade Mark SONY for use in respect of sports goods with the intention of trading unfairly on the reputation and goodwill gained by the appellant or that it falsely claimed to be its proprietor and pleaded that the word Sony wag a vernacular term meaning 'goldsmith' and was widely used in Pakistan to denote this meaning. Accordingly, it prayed that the opposition filed ay the appellant should a rejected and the application be ordered to proceed to registration.
4. After hearing the Trade Mark Agents of the parties, and considering the affidavit evidence on record, the Registrar of Trade Marks held that although the Trade Marks were identical, the respective goods, namely. Electronic goods manufactured by the appellant and the sports goods manufactured by the respondent No. 2 were so different that it is impossible to take the view that any kind of trade connection could exist between them and, therefore. Deception or confusion was not at alt possible. Accordingly by the impugned decision dated 6-6-73. He dismissed the opposition and ordered the application of the respondent No. 2 to proceed to registration.
5: Section 8 (a) of the Act reads as follows : "8. No Trade Mark or part of a Trade Mark shall t-- registered which consists of, or contains, arty scandalous design, or any matter, the use of which would-
(a) by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of Justice."
6. The main question, which arises for consideration under section 5 (a), is well-settled and was formulated as a test by Evershed, J. M. R. (as he then was) In re : Application by Smith Hayden d; Company Limited (1946)63RPC97 with reference to the corresponding section 11 (a) of the U. K.
Trade Marls Act, !938. This test has since been followed and applied in a number of reported cases, and lastly, by the House of Lords in the case of the "Bali' Trade Mark (1969) R P C 472. The test, when applied to the instant case, would real as follows : Having regard to they appellant's reputation, or more correctly, (as observed by the House of Lords in the "Bali" caneabove--mentioned) having regard to the user by the appellant of the Trade Mark Sony in respect of Transistor Radios, Television sets, Tape-recorders ere. Would the use of the Identical Trade Mark by the respondent No. 2 in respect of sports goods applied for, be reasonably likely to cause deception and confusion amongst a substantial number of persons.
7. The submission of Mr. Ebrahim Ahmed, learned counsel for the appellant, is that the Registrar put a limited construction upon section 8 (a) and unduly narrowed its scope by holding that deception or confusion as to trade source was not possible because, although the rival marks were identical, the competing goods were very different and there was no trade connection between them.
According to counsel, section 8 (a) is not limited to any particular kind of deception or confusion arising by reason only of trade connection between the goods or a common or related trading activity. That, circumstances may exist where the mark of the one proprietor is so well known in the market that the use of it by any other person in relation to different goods in an unrelated trade, even if there was no trade connection between the respective goods, may lead the public to think that the different goods cane from the same source and thereby result in deception or confusion.
That it is the case of the appellant, which the Registrar failed to consider, that the Trade Mark SONY has become so well known to the public that the use of it in relation to sports articles by the respondent No. 2 would lead to deception or confusion, because purchasers of sports articles may think that they were the manufacture and merchandise of the appellant. Counsel relied on certain British decisions, which, according to him, supported his submission that deception or confusion may arise if a well-known Trade Mark of one proprietor is used by another person in respect of different and unrelated goods, viz., the 'Fruit Salt' case (Eno v. Dunn) (1890) 7 R P C 311, 'The Kodak' case (1898) 15 R P C 105 and 'The Black Magic' care (1941) 58 R P C 91 These cases, however, are distinguishable on their faces and do not support counsel's submission. In each of them, there was evidence to show that there was some connection, actual or supposed between the competing goods sold under the same mark which made the risk of deception or confusion probable. Thus, in the "Fruit Salt ease", Eno's "Fruit Salt" effervescing drinking powder had acquired notoriety, therefore.
Dunn's application for "Fruit Salt" baking powder. Which were different goods, was refused, because the majority of the noble lords found on the evidence that many people would think that there was a supposed connection between the two articles in that they would assume (and, in fact, some witnesses did try the experiment) that the "Fruit Salt" baking powder had been manufactured with Eno's "Fruit Salt" and purchase it in that belief. In the "Kodak case", the registration of the Trade Mark "Kodak" for by cycles by the respondent was expunged at the instance of the proprietor of the well known Trade Mark 'Kodak' used for cameras on the ground that, again on the evidence, it was found that there was an intimate connection between the bicycle and camera trades, because the respondent manufactured and sold 'Kodak' cameras specially adapted for use on bicycles, which came to be known as "Bicycle Kodaks". In the last cited "Black Magic" case, the application for registration of the Trade Mark "Black Magic" for medicated laxatives was refused on opposition by the registered proprietor of the same Trade Mark for chocolates on the ground that, on the evidence. It was proved that chocolate was used as a flavouring for certain laxatives and, in view of this connection it was held that there was risk of confusion between the goods, as some persons would be likely to think that the 'Black Magic' laxatives were made by the same manufacturer and others to wonder if this might be the case.
8. Other cases from the same jurisdiction have also hold that deception or confusion was probable only because there was evidence of actual or supposed trade connection between the competing goods and in this connection reference may be made to the "Leesona" case (1955) 72 R P C 75, the "Players Tm" case (1965) R P C 363 and the "Woodies Tm" case (1965) R P C 366. Our High Court have also adopted the above British view regarding trade connection between different goods in the " Resloom" case PLD 1968 Kar. 369 (in which case the connection between competing goods was found to exist on the evidence), while in the "Jeep" case PLD 1969 Kar. 376 and the "7-Up" case PLD 1976 Kar. 895, no such trade connection was found to exist.
9. In passing-off cases also the Courts have insisted on proof of a common or related field of trade or business before granting an injunction, as held in the "Uncle Mac" case (1948) 65 R P C 58 and the "Granada" case (1973) R P C 49. But it may be mentioned here that the theory of common or related field of trade car activity has been criticised by the Australian Courts in the "'Hendersons" case (1969) R P C 218 and the "TAB" case (1972) R P C 579, in which it was held that it is not a condition of relief in a passing-off case that a plaintiff must show that fee and the defendant are engaged or intend to engage in a common field of setivity and that one it is proved that a person is falsely representing his goods or his business to be the same as or connected with the well-known goods or business of another proprietor, the wrong of passing-off has been established and the proprietor is entitled to relief.
10. Section 8 (a) of the Act is designed for the protection of the public against deception or confusion and must, therefore, be given a wide scups and should not be limited to any kind of confusion, such as arising by reason only of any trade connection between the competing goods.
Once it is established on the evidence that deception or confusion is probable, the Registrar is bound to prohibit registration of the proposed Trade Mark in the public interest. Now, it is not the case of the appellant that there is any trade connection between sports articles and the sophisticated electronic products of the appellant. The goods are so different to their nature, but, manufacture, trade channels and the classes of purchasers. Therefore, ordinarily, it would be difficult to infer the probability of the public being deceived into purchasing the sports articles in the belief that they are manufactured by the appellant. But, the submission of Mr. Ebrahim Ahmed is that because the appellant's Trade Mark Sony has become so well known and is so closely associated in the public mind with the appellant and its products, that when the public sees the same mark appearing on sports articles they would believe or at least wonder if the sports articles were, in fact, the products of the appellant or were in some way connected with it. The fact that the respondent No. 2 has deliberately adopted the appellant's Trade Mark shows that ha intended to benefit from such confusion. Mr. Ebrahim Ahmed, however, cited no case-law In support of the above proposition, but there are two cases in which the facts were exceptional, where Courts have held that in the circumstances deception or confusion was likely to arise despite the absence of any trade connection between the different goods.
11. The first is the decision of the High Court of Australia in Radio Corporation Proprietary Limited v.
Disney and others (1937) 57 C W L R 448. In that ;ass, Walt Disney invented two fantastic and amusing Cinema characters "Mickey Mouse" and "Minni Mouse" which had acquired world popularity and fame in cinematograph pictures and wets very widely known throughout Australia.
After these characters attained celebrity through the moving pictures, they were used in publications and printed matter of many kinds, including cartoons, stips and other forms of advertisement. :Manufacturer or traders paid for permission to use the names or figures in connection with their goods under licences from Walt Disney, who himself did not engage In manufacture or trade is that country and nor were these names registered as Trade Marts The respondent applied to register the words "Mickey Mouse" and 'Minni Mouse' as Trade Marks in respect of radio receiving sets and kits. On opposition the application was refused by the Registrar and his decision was unanimously confirmed on appeal by a Bench of four Judges of the appellate Court on the ground that the words were so closely associated in the public mind with the name of Walt Disney that their use by the appellant, as Trade Marks, would be likely to deceive within the meaning of the corresponding section 114 of the Australian Trade Marks Act, 1905-34. Latham. C. J.
Observed as follows : "The opponents have, in my opinion. Known that the names and the figures are so closely associated in the public mind, in Australia and elsewhere, with Walter E. Disney and his activities, that the Rae of either the names or the figures in connection with any goods at once suggests that the goods are "in some way or other connected" with Walter E. Disney (see, per Lord Macnaghten (Eno v. Dunn)). This the evidence shows, would be the case whatever the nature of the goods to which the names were attached. It is very seldom indeed that There can be a world-wide association of ideas in connection with a particular name or figure, but the evidence shows that this association does exist fir the present case, A proposed Trade Mark should not be registered if it involve "a misleading allusion or a suggestion of that which is not strictly true" (Eno v. Dunn). Thus, in my opinion, these marks should rot be registered.
Ido not decide this appeal upon the basis that tire opponents have any exclusive right of any kind to the sac of the words and figures in question whether by way of Trade Mark or under a copyright or otherwise. My opinion is based solely upon the ground that, as against the public, the applicants should not be granted the exclusive right to use the words in connection with any goods for the reason that the use of the words by them as a Trade Mark would be Likely to deceive (section 114)."
1?. The second case is which, despite absence of a trade connection between the different goods, deception or confusion was found to exist on the facts of the particular case, is the "Caltex" case reported as Sunder Permanana v. Caltes (India) Ltd. AIR 1969 Bom.
24. In that case, an application for registration of the Trade Mark "Caltex" for watches in Class 14 of the Indian Trade 8c Merchandise Marks Act, 1958, was allowed by the Deputy Registrar despite opposition by the proprietor of the Trade Mark "Caltes" which was registered in class 4 in respect of oils, lubricant motor fuels etc. On the ground that the goods were dissimilar and there was no trade connection between them. Ors appeal by the registered proprietor, the decision of the Deputy Registrar was reversed by a single Judge of the Bombay High Court and the further appeal by the applicant was dismissed by a Division Bench of that Court. It was held that the main factors, which tended to show likelihood of creating deception or confusion, were the very extensive reputation of the opponent's Trade Mark 'Caltex' among common persons all over India. In cities and in villages, in different walks of life, rich or poor, literate or illiterate, and further that watches which were not special goods, would also be purchased by the common man and the potential market for both goods were similar. On the facts of that cafe, the Division Bench had no hesitation in holding that a large number of persons, if they saw or heard about the mark "Caltex" In connection with watches, would be led to think that the watches were in some way connected with the opponent, or they would wonder whether they were in any way connected with the opponent. The contention urged on behalf of the applicant for "Caltex" watches was rejected that in the absence of a trade connection between goods, the general reputation of the Trade Mark "Caltex" gained by the opponent in respect of actual user of goods in a particular class without any reputation for goods in any other class, cannot be a factor for creating deception or confusion among the public. The Division Bench observed that no single factor can be decisive of the Question of confusion and that all factors present in the case have to be considered in combination. The observation of the Division Bench was : "One must never forget that what section 11 (a) (Our section 8 (a) requires to be decided is whether the mark sought to be registered is likely to deceive or cause confusion. That likelihood must very on the facts of each case. Human conduct is varied and complex. The importance of a particular fact or facts may vary in the perspective of the totality of the fats of each case. The importance of A particular fact may increase or diminish when considered in combination wits different seta of facts. What has to be decided in a case is whether on the totality of the facts of that case, it is likely that there would be deception or confusion. It would, therefore, be totally misleading to rely only on some individual fact or facts from a decided case and put emphasis on them without taking into account other facts in combination with which that particular fact was looked upon as yielding any principle. All factors which are likely to create or alley deception or confusion must be considered in combination. Broadly speaking, factors creating confusion would be for example the nature of the mark itself, the class of customers, the extent of the reputation, the trade channels, the existence of any connection in the course of trade, and several others. Of course, it need not be stated that it would not he that all such factors would exist in each and every case."
13. The concept i3 also recognised in section 38 of the Act relating to defensive registration of a well-known invented Trade M.....Under that section where a Trade Mark consisting of an invented word, has become so well-known by user that when used by other persons in relation t different goods would be likely to be taken as indicating a connection in the course of trade between those goods and the registered proprietor then the registered proprietor may apply for such trade to be registered as a defensive Trade Mark in respect of those other goods, notwithstanding that B the registered proprietor does not use or propose to use the Trade Mark for those goods. The test of the required connection is whether the public on seeing the well-known Trade Mark of a proprietor being used o different goods would be likely to suppose that there is a connection in the course of trade between these goods and the proprietor, as originating from the same source. However, in the Ferodo Limited's Application (1945) 62 R P C 111 the registered proprietor of the invented word "Ferodo" which was used in respect of brake linings and clutches, applied for defensive registration of the word in respect of pharmaceutical products and Tobacco articles. The application was refused, because, on the evidence, the applicant failed to discharge the onus of showing that the required connection existed.
14. Mr. Ebrahim Ahmad cannot rely on the two cases above-discussed, because the circumstances and the facts, on the basis of which they were decided, were very special. Before I discuss the evidence in the present CAN I will deal with an important submission of Mr. I. M. Patel, learned counsel who appeared on behalf of the Registrar's decision.
15. The submission of Mr. I. M. Patel is that the rights conferred upon an owner by registration of his Trade Mark are limited and do not give an absolute right to prevent registration by another person of an identical or similar Trade Mark in respect of different goods. He referred to section 10 (1) of the Act, under which the registered proprietor cannot object to registration of the identical or similar mark by another person in respect of goods which are not the same or of the same description and further that that under section 10 (2), the Registrar may even permit registration of the same or similar mark in respect of the same goods or description of goods in the limited case of honest concurrent use or other special circumstances. Therefore, his contention is that the registered owner is in no better position to object to the registration of the same or similar mark for different goods under section 8 (a) of the Act, and section 8 (a) should also be given a limited meaning, as otherwise section 10 would be redundant. A similar argument was advanced by counsel for the appellant before Dorab Patel, J. (as he then was) in the Seven-Up Co. U.S.A. v. Abdul Aziz Noor Muhammad PLD 1976 Kar. 895, and the argument appears to have impressed the learned Judge.
But, with the utmost respect, the question is not of the right of a registered owner to object to registration under section 8 (a), but the question is one of public protection against deception or confusion. In this connection, the statement of Lord Macnaghten in Eno v. Dunn (cited earlier) may be reproduced : "The learned Judges who were in favour of Mr. Dunn in the Court below seem to have come to the conclusion that Mr. Dunn's object was to obtain the benefit of the celebrity which the name adopted by Mr. Eno has acquired, but that it was not his object to steal Mr. Eno's Trade. So far I am disposed to agree ; but I do not think that those propositions cover the real question. The question is one between Mr. Dunn and the public, not between Mr. Eno and Mr. Dorm. I! Is immaterial whether the proposed registration Is or is not likely to injure Mr. Eno in his trade. Equally immaterial, as it seems to me, is the fact that for a considerable time Mr. Eno had on the register as his Trade Mark, the words "Fruit-Salt". Mr. Eno may have gained some advantage to which he was not properly entitled ; but that is hardly a reason for permitting Mr. Dunn to practise a deception upon the public."
"Section 11 and its forebears were designed not so much for the protection of other traders in the use of their marks or their reputation but for the protection of the public. This was made quite plain by the majority opinions in your Lordships House in Enno v. Dian (1890) 7 R P C 311."
"The object of section 11 (our section 8 (a) is to prevent matter getting on to the register which in the public interest should not be there. It would be contrary to the public interest for an applicant to register, and thus to obtain exclusive rights in respect of, a mark deceptively similar to an existing mark, whether the mark sought to be registered in a new one in respect of which the applicant has as yet no reputation or rights or one in respect of which he might, but for the objectionable likelihood of deceit or confusion, be able to maintain an action for relief in a Court of Justice."
16. Mr. Patel also submitted that to refuse the application of the respondent No. 2 would, in effect, be to grant a monopoly to the appellant to the right in the Trade Mark SONY for all classes of goods.
This argument, in my opinion, is misconceived. It was rightly dispelled by the Division Bench in the "Caltex" case, above-cited, in para. 57 at page 39 in the following words : "How could the exercise of the discretion against the applicant result in the creation of a monopoly in the opponents in the word "Caltex" in respect of every conceivable kind of goods? The exercise of his discretion against registration would disentitle only the applicant to use the mark "Caltex". But that would not be creation of a monopoly in the opponents. A monopoly means a sole right being vested in the applicant to use mark to the exclusion of all other persons. By the mere fact of exercising discretion in that way, none other than the applicant would be disentitled to use the made in respect of goods falling in the classes other than those for which the opponents have registered their mark. It is quite clear that even if the discretion was exercised against the applicant, it could not have conferred any monopoly on the opponents as apprehended by the Deputy Registrar. Or prevented any other person in acase from using the word "Caltex" as his Trade Mark in respect of other goods as permitted under the Trade Mark law. Thinking in terms of monopoly in this context was basically wrong. Where considering the question of the exercise of his discretion the Deputy Registrar has taken into account a principle which bad no application to the facts of this case."
17. The evidence adduced in this case by the parties comprises of two declarations of Mitsup Takahashi dated 16th June 1971 and 24th August 1972, the affidavit of Abdullah Chundrigar dated 28th April 1971 and that of Yunus A.I Muhammad Seth dated 23rd November 1911, as evidence in support of the opposition and a reply-affidavit of Muhammad Bashir, the director of the respondent No. 2 dated 7th October 1972 in support of the application. Whether the use of mark is likely to deceive or cause confusion, being a question of fact on the evidence, the initial onus is on the appellant to establish not only use and reputation of its mark but also of all the other facts and circumstances which, according to the appellant, would lead to that result. It is only after this initial onus is discharged that the burden falls upon the respondent No. 2 to satisfy the Tribunal gnat the use of the mark would not be likely to deceive or cause confusion. An examination of the evidence adduced by the appellant shows that it had failed to discharge this burden. The evidence is not satisfactory on the extent of the appellant's reputation and the notoriety of its Trade Mark SONY ; nor is there any evidence as to the other facts and circumstances. Apart from that statements made in the declarations and the affidavits of the appellant's witness with regard to dollar and rupee value of imports of SONY Transistor Radios, radio kits and T. V. Receiving sets into Pakistan, there is no evidence to show that these products have been sold in any of the cities and rural areas of Pakistan. There are no affidavits from shopkeepers or members of the public from these areas.
Therefore, the claim of the appellant that it had gained general and universal reputation in respect of its Trade Mark SONY has not been satisfactorily established. Whore is also no evidence from purchasers of sports articles, nor even a suggestion in the affidavits of the two local witnesses that such purchasers, on seeing the Trade Mark SONY on sports articles, would be deceives and believe that they were manufactured by the appellant. Moreover, the respective goods are not sold in the same shops nor dealt with through the same trade channels. The appellant's witness, Mitsuo Takal ashi, however, stated that a connection existed between the transreceivers and video-tape- recorders, because sportsmen use transreceivers while engaged in mountain climbing, yachting.
Skiing etc. And video-tape recorders while learning to improve their form of the game. But, there is no evidence that this is the fact in Pakistan, whatever may be the position in foreign countries.
Again, the evidence is defective as to the alleged deceptive manner in which the respondent No. 2 is selling his sports goods. Now, I have no doubt that this respondent has adopted the Trade Mark SONY to gain some advantage for itself from the appellant's reputation. No explanation has been given why it has adopted the appellant's mark beyond throwing a suggestion that the word 'Sony' in 'Gujrati' language means goldsmith. But, the unauthorised adoption, by itself, is only one of the factors in this case and loses much of its force in the absence of proof of other factors and circumstances which have to be considered together, such as the extent of the reputation, the nature of the goods, the class of purchasers, the trade channels etc. The goods of the appellant, being sophisticated electronic goods, are very special in nature, a9 compared with the ordinary cheap articles manufactured by the respondent No. 2, aid with the exception of a few thoughtless persons, it is difficult to believe that many average purchasers or the public would think that a tennis request or cricket bat sold under the Trade Mark SONY, was made by the appellant. I am of the opinion that the appellant has not substantiated a case of tangible danger of confusion among a substantial number of persons.
18. The final submission of Mr. Ebrahim Ahmad is that the Registrar should have refused the application in the exercise of his discretion under section 14 (1) of the Act, on the ground that respondent No. 2 dishonestly adopted the appellant's Trade Mark and falsely claimed to be its proprietor. On the fiat point. Having held that the appellant had failed to prove its case of deception and confusion, there is no room for a further exercise of discretion by the Registrar under section 8 (a) because the discretion is to be exercised "subject to the provisions of the Act" as is stated in section 14 (1).
19. On the second point as to the respondent's alleged false claim to proprietorship of the mark, the claim would be false only if someone else was already the proprietor of it or had a better claim to it known to the applicant. A person becomes proprietor of a Trade Mark either by registering it for a class of goods under the Act, or by using it in respect of certain goods, in which case the property is properly said to be in the goodwill of the business to the goods. Where the appellant has neither any registration in class 28 for sports goods, nor any user in respect of those goods, it can hardly be said that the appellant has a better claim to proprietorship of the mark than the respondent. In Vitamines Limited Application (1956) R P C 1, where such objection was taken to false claim to proprietorship of the Trade Mark "Pabalats" for pharmaceutical products by the applicant who applied for its registration, the objection was upheld on opposition by an American Company, in the exercise of Registrar's discretion, only because the Trade Mark had already been claimed by the American Company, which had filed an abortive application earlier for the same goods to the knowledge of the applicant. In such a case, the claim to proprietorship would not be honest and the Registrar may refuse the application in his discretion. As an instance, may be cited Abdus Salam and others v. Crown Radio Corporation, Karachi PLD 1973 Kar. 24 where an Importer, who had imported radio parts and kits under the Trade Mark "Crown" from his Japanese Suppliers, applied for registration of the suppliers' mark in his own name. On opposition by the Japanese Suppliers on the ground that the applicant falsely claimed to be its proprietor, the mark was refused in the exercise of the Registrar's discretion under section 14 (1) of the Act and the decision was upheld by the High Court. Therefore, there is no force in the submission of the appellant's counsel regarding false claim to proprietorship by the respondent No. 2.
20. The result of the foregoing discussion is that, in my opinion, this appeal is without merit, it is accordingly dismissed with no order at to costs.