' This first appeal against Order impugns an order dated 20-11-2003 handed down by Mr. Sana Ullah Khan Niazi, learned Additional District Judge, Faisalabad, while disposing of an application meant for interim injunction. The operative part of the order reads as follows:-- "The documents filed by the plaintiff with their arguments Annexures 'E' to 'M' clearly indicate that the plaintiffs are running business in the name of the trade mark as 'Jahangir Murgh Palao'. I have also seen the documents annexed with the written statement of the defendants which clearly indicate that they have been running their business with the name of 'Jahan Zaib Murgh Palao'. The Annexures 'M-1' to 'M-4' filed with the written statement by the defendants prima facie indicate that they have been running their business with the name of 'Jahan Zaib Murgh Palao'.
' In view of these observations the plaintiffs have succeeded to make prima facie case. Balance of convenience in this case also falls in favour of plaintiffs. They may suffer irreparable loss due to the act of the defendants. In these circumstances, application under Order 39, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Is accepted. The defendants are restrained from using of trade mark namely 'Jahangir Murgh Palao' till final decision of the suit."
2. The plaintiffs/respondents in this case had filed this suit under section 73 of the Trade Marks Act of 1940 complaining of infringement of their trade mark and copyright registration, the details of both have been given in the plaint, and the prayer was that the appellants be stopped from passing on their goods as goods of the plaintiff. It appears that there has also been a criminal litigation on the same aspect between the parties. The admitted position is that whereas the plaintiffs/ respondents are holders of trade mark and copyright registration in their favour, the appellants are without these and the main ground being urged by them was that the plaintiffs/respondents have obtained the registration of the trade mark and copyright by suppression of true facts. That in fact the appellants had been using this trade mark since long, whereas the respondents had been using different other names while submitting tax returns etc. .3. Both sides have placed on record documents in respect of their assertions which have as yet to be exhibited and verified.
4. Section 21 of the Trade Marks Act of 1940, which confers a right of exclusive use on the holder of a trade mark duly registered, reads as follows:-- "Right conferred by registration.
(1) Subject to the provisions of sections 22, 25 and 26, the registration of a person in the register as proprietor of a trade mark in respect of any goods shall give to that person the exclusive right to use of the trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, uses a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render to use of the mark likely to be taken either:--
(a) as being used as a trade mark; or
(b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade."
5. According to section 23 of this Act, registration was a prima facie evidence of the validity of the registration of the trade markftIt reads as follows:-- "Registration of prima facie evidence of validity.
' In all legal proceedings relating to a trade mark registered under this Act the fact that a person is registered as proprietor thereof shall be prima facie evidence of the validity of the original registration of the trade mark and of all subsequent assignments and transmissions thereof."
6. The fact that the appellants had been using the trade mark 'Jahangir Murgh Palao' before the registration of the trade mark and thus were protected under section 25 of the Trade Marks Act of 1940, will have to be established during the course of evidence. Since the respondents are the proprietors of the trade mark 'Jahangir Murgh Palao' under reference, a prima facie case is established in their favour. This Court does not find any error with the basic findings of the trial Court while disposing of the stay application. Reference in this connection may be inter alia made to the cases: (1) Messrs K.S. Sulemanji Esmailji & Sons v. Messrs M. Sulemanji & Company Ltd. 1986 CLC 775; (2) Messrs Burney's Industrial & Commercial Co. Ltd. v. Messrs Rehman Match Works PLD 1983 Karachi 357; (3) Abdul Jabbar and another v. Ahmad Jan PLD 1973 Karachi 289; (4) Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant 1987 SCMR 1090; (5) Messrs Tri-Star Industries (Pvt.)
Ltd. v. Messrs Trisa Bursten Tabrik A.G. And others 1999 YLR 638; (6) Standard Finis Oil Co. And others v. National Detergents Ltd. And two others 1984 CLC 781; (7) Messrs Chas A. Mendoza v. Syed Tausif Ahmad Zaidi and two others PLD 1993 Karachi 790.
7. In case the plaintiffs/respondents have obtained registration of trade mark and copyright by suppression of true facts, the matter be brought to the notice of the Registrar and objections filed before him in accordance with law. But until this is done, the plaintiffs will remain the proprietors of the trade mark having a vested right.
8. Presently, this Court finds that this appeal has no merits and is, therefore, dismissed. Anyway, this order shall have no bearing in case any of the parties approached the Registrar Trade Marks for adjudication nor on the ultimate decision at his end.