' This first appeal against order is directed against an order handed down by Mr. Muhammad Masroor Zaman, learned Additional Sessions Judge, Gujranwala, on 24-12-2003, refusing to grant temporary injunction during the pendency of the case to the appellant/plaintiff.
2. The matter really relates to a trade mark and not to a copyright. But strangely enough the suit was filed under sections 60 and 65 of the Copyright Ordinance, 1962. Corpus Juris Scandium defines copyright as follows:-- "Copyright is usually defined as the exclusive right of printing or otherwise multiplying copies of an intellectual production and of publishing and vending the same; the right of preventing all others from doing so. As such rights can be enjoyed in their entirety only by virtue of statutory provisions.
The term is synonymous with statutory copyright. Copyright may be accurately defined, therefore, as the right granted by statute to the proprietor of an intellectual production to the exclusive use and enjoyment to the extent specified in statute.
Copyright in general, may be defined as the exclusive right of multiplying copies of an original work or composition."
3. Meaning of copyright is also well-illustrated in section 3 of the Copyright Ordinance, 1962, where different acts pertaining to literary, dramatic or musical works or cinematographic works relating to this Ordinance are covered.
4. In the present case, both the sides are manufacturing, selling and distributing a soft drink in the name and style of 'Mecca Cola' and claim to be legally carrying on this trade. Both of them further claim that they have submitted their applications for purposes of registration of their trade marks in respect of the goods being manufactured by them in the name and caption of `Mecca Cola'. The plaintiff has submitted his application on 30-9-2003, while the respondents had followed suit on 8- 12-2003. The Registrar, Trade Marks, it appears, is handling their applications but has not taken any step towards a decision and this is perhaps the reason, why the plaintiff had to file this suit and had sought injunction.
5. However, according to the plaintiff, his trade mark was registered in France and while referring to the Berne Copyright Convention as revised in 1971, claims that his trade name is protected. It was also argued that in view of "spill over advertisement", people of different countries were aware of the product which had a transborder reputation. That different people of different countries were familiar with this name and, therefore, the passing off by the respondents had to be stopped because people would be deceived in taking the product of the respondents as one produced by the plaintiff which was forbidden by law.
6. On the other hand, it is the case of the respondent that there is no protection available to the appellant under the Trade Marks Act as the appellant is not a registered body here. That the respondent was itself engaged in manufacturing of 'Mecca Cola' having established a factory, where several persons worked and it had a considerable sale. Whereas, it was alleged that the appellant had no such manufacturing unit but rather depended for production of its goods by using the factories of other beverage companies and this reflected that the appellant was only trying to interfere in a local industry by posing itself to be a giant trader.
7. It was also argued that the appellant himself was not a giant trader but an unknown person located somewhere at an obscure place in France. But was drumming up his name here as if it had the capacity and the reputation as is ascribed to giant beverage manufacturers in the world.
8. It has also been stated that 'Mecca Cola' was a beverage, recently introduced and there was no history of its long usage.
9. There is another dimension of this case. The word "Mecca" is the name of a famous city which has an emotional attachment with the Islamic faith. Two questions shall arise, firstly, can the name of a well-known city be appropriated alongwith the word 'Cola' as a trade mark as if it was a coined word used alongwith a word descriptive, of the goods. Anyway, "Mecca" is not an inventive word. `Cola' too does not appear to be a word coined by the appellant. The second question is whether the use of the word "Mecca" will be covered by the prohibition of section 8(b) of the Trade Marks Act, 1940? And further it is to be seen as to what effect section 6(d) shall have against such a name.
10. Reference in this connection may be made to the following cases: Wotherspoon v. Currie (1872)
27 LTR 393; Montgomery v. Thompson (1891) 8 PRC 361; Reddaway v. Banham (1896) 13 RPC 218; Powell v. The Birmingham Vinegar Brevery Co. Ltd. (1897) 14 RPC 720; Faulder & Co. v.
0. And G. Rushton Ltd. (1903) 20 RPC 477; California Fig Syrup Company (1909) 26 RPC 846; In re: Itala Fabbrica Automobili (1910) 27 RPC 493; Shields Ice & Cold Storage Co. Ltd.'s application (1940)
40 RPC 197 and Joseph Bancroft & Sons Co. v. Registrar of Trade Marks (1957-58). As well as to the cases of Messrs Punjab Soap Factory v. The Assistant Registrar of Trade Marks, Karachi (PLD 1970 Karachi 604); and Messrs Punjab Soap Factory, Lahore v. The Assistant Registrar of Trade Marks, Karachi (PLD 1970 Karachi 444).
11. The applications for registration of the trade mark on behalf of both sides are already sub judice before the learned Registrar Trade Marks, who is an expert in this area. It is for him to see the consequences and the implication of the use of this trade mark in Pakistan. While doing so, he shall without any prejudice keep these observations in view.
12. While we await the decision of the Registrar Trade Marks in this connection, it will be fair and proper that both parties were restrained from using this name against their product. They are so restrained.
13. Because both parties have been restrained, therefore, this Court directs the Registrar Trade Marks to expeditiously dispose of the applications of the parties for registration of the trade mark and preferably within two months from today while transmitting a copy of his decision to this Court through its Deputy Registrar (Judicial). The Court below shall also await the results from the Registrar, Trade Marks until these are .Received.
14. Office to send a .Copy of this order to the Registrar, Trade Marks at Karachi against his correct address immediately.