1994 PLP 607 (MLD)

The appellant has filed a suit for permanent injunction restraining the respondents from infringing the registered Trade Mark "TANG" and passing off their products as for the products of the appellant and also from attempting to infringe, use, pass off, manufacture and sell their own soft drink etc. under the Trade Mark "TANGO" nearly identical/confusingly similar to the appellant's Trade Mark "Tang". Prayer for rendition of accounts was also made. This suit is pending in the Court of learned Additional District Judge, Lahore. The respondents have filed their written statement and have contested the suit.

2. Alongwith the plaint an application under Order 39, Rules 1 and 2, read with section 151, C.P.C. for grant of interim relief by way of restraint order was also moved. This application did not find favour with the learned Additional District Judge, who, vide order dated 28-9-1991, dismissed the same. The appellant has filed this appeal.

3. It is contended on behalf of the appellant, with reference to the material available on the record, that the appellant had succeeded in making out a prima facie case. As regards the balance of convenience and irreparable loss, it was contended that these two factors also were borne out from the record it favour of the appellant and, therefore, interim relief, as prayed for, should not have been refused.

4. I regret, I do not agree. The learned trial Court has refused to exercise discretion in favour of the appellant. After carefully taking into consideration the respective versions of the parties the learned trial Judge noticed that it is not only the Tide Mark "TANG" which is registered in the name of the appellant and not "TANGO". He also noticed the contention of the respondents that they were selling their products under the said brand name for the last many years and the products of the contesting parties also did not bear resemblance with each other. In the original packing material placed on the record was also carefully perused. In the view of the learned trial Judge, the packing material of the respondent was not identical in colour, design and get up with that of the appellant. Learned counsel for the appellant also showed me the packing material, in Court, being used by the parties for sale of their products and I see no reason to differ with the finding of the learned trial Court recorded in this behalf.

5. Learned counsel for the respondents has drawn my attention to para. 7 of the plaint, wherein it has been asserted that the appellant has obtained registration of trade marks of both the products ire. `TANG' and `TANGO. It is conceded by the learned counsel for the appellant that this is not so. Only one product, namely, `TANG' is covered by the registered trade mark while efforts are being made for securing registration of Trade Mark `TANGO'. The plaint is duly verified on oath by Mr. Hasan Irfan, attorney of the appellant. When questioned on this aspect of the matter, no satisfactory explanation could be given by the learned counsel for the appellant for this misstatement of fact. Clearly, this was an attempt on the part of the appellant to obtain interim 'relief.

6. For what has been said above, I did not find force in this appeal which is dismissed with costs.

7. Since the matter is lingering on before the learned trial Court for more than a year, I direct that the same shall be finally decided within a period of one month from today. H.B.T./K-59/L Appeal dismissed.