P L D 1954 Sind 124 (PLP)

LARI, J.‑This is an application under Order 39 rule 1 by Messrs. Lipton Ltd., incorporated in England against the defendants praying that the defendants be restrained from preparing for sale packing, stocking, advertising, selling or offering for sale or from passing off or attempting to pass off or otherwise dealing in Pakistan in tea bearing the labels and monogram or any colourable imitation thereof pending decision of this suit. The allegations in the plaint are that the design and get up of the defendant's label on their 1 lb. and other size packets are flagrant imitations of the design and get‑up of the plaintiffs' label on their 1 lb. and other size packets of White Label Tea and the monogram device used by the defendants is a colourable imitation and infringement of the plaintiffs' registered Monogram Trade Mark. An interim injunction was issued and the defendants have appeared to contest. The first contention of the defendants is that the suit is based on infringement of a trade mark and inasmuch as the label is not a registered trade mark, no suit can lie in respect thereof : Attention has been drawn to para. 18 of the plaint, which runs thus:- " That the plaintiff served the defendants with registered notice dated the 31st January , 1953, inter alia complaining of the said infringements and called upon the defendants to desist from packing, exposing for sale or selling their tea in the packets bearing the infringing labels and Trade Mark and to comply with other requisitions therein contained." and to para. 21 of the plaint, which is to the following effect :‑ " That the cause of action arose at Karachi within the jurisdiction of this Honourable Court where the defendants are carrying on business and packing, distributing, selling, offering for sale and passing off their goods as those of the plaintiff. The cause of action accrued to the plaintiff in the middle of February, 1953, when the defendants refused to comply with the plaintiff's demands and requisitions." There is force in this contention but it is not necessary to decided the question at this stage for the application for injunction must fail on another ground. The resemblance between the label and monogram on the packets of the contending parties is not .of such a nature as to deceive a prudent prospective purchaser in believing that the packets offered by the defendants are those prepared by the plaintiff. The learned counsel for the plaintiff contend ed that the resemblance has to be approached from the view point of ordinary or unwary customer and relied on a case reported in Firm Hiranand Lalchand v. Firm Sardar Mehar singh Sadhusingh and others (A I R 1938 Sind 38.). No doubt the observations in this case support the contention of the plaintiff but they have lost much of their force in view of the decision of the Privy Council in Thomas Bear & Sons v. Prayag Narain and another (I C Vol. 187 (1940) 658) in which their Lordships of the Privy Council affirmed the decision of Niamat Ullah, J. who had held. " Some ignorant and indiscriminating persons might be deceived, but persons exercising ordinary caution would not be likely to assume that the chewing tobacco sold by the respondent was manufactured by the appellants." It has been held by the Lahore High Court in a case reported in Modi Sugar Mills Ltd. v. Tata Oil Mills Co., Ltd. (A I R (30) 1943 Lah. 196.) that in judging the probability of description the test is not whether an ignorant or the incautious purchaser is likely to be misled and the Court has to approach from the view point of the average purchaser buying an article with ordinary caution. Considering that the resemblance between the respective labels and monograms is not such as may lead a cautious purchaser to the inference that the goods offered were those of the plaintiff it must be held that there is no prima facie case. In this view of the matter the interim injunction already issued must be vacated. The application is, therefore, rejected. A. H. Injunction vacated.