1998 PLP 1234 (MLD)

Abdul Wajid Wayne for Respondent (absent). Date of Hearing: 14th January, 1998. This petition filed under the provisions of section 46 read with section 72 of the Trade Marks Act, 1940 (hereinafter referred to as the Act 1940) seeks the rectification in respect of registered trade mark "Medicam" produced and manufactured by respondent No. 1 duly registered by the Registrar Trade Marks under the provisions of the Act, 1940.

2. It is the case of the petitioner company that they have moved an application for registration of their product "English Medipac" to the Registrar Trade Marks some times in November, 1992 whereas the respondents product "Medicam" was registered on 1-3-1989 in class-3 in relation to Dental Cream with the assertion that the said product was in use since 1-1-1989. Although the product "Medipac". manufactured by the petitioners is not yet registered, rectification is sought on the ground that the prefix "Medi" used by the petitioners is in common use and commonly used and understood as indicating an ingredient of medicine and medicinal element. It is further urged that at the time of seeking registration by respondent No. 1, the mark "Medicam" did not possess distinctiveness or any of the essential particulars of a registrerable trade mark within the meaning of sections 6 and 9 of the Act, 1940 and that such registration was obtained by playing fraud and mis-representation on the Registrar without a condition of disclaimer in respect of common and descriptive prefix "Medi" to the detriment of the rights of the general public.

3. Respondent No. 1 has contested the petition by filing a para-wise written statement and assailed the maintainability of the petition for want of a valid cause of action and that it has been filed mala fide. It is urged that the respondent company has filed Suit No. 848 of 1992 against the petitioner for an injunction restraining it from using the trade mark "Medipac". It is submitted that the expression "Medipac" is a distinctive name; that it is similar in name to the product of the respondent and that the petitioner is acting mala fide and with dishonest intentions to use a similar name with the prefix English.

4. Upon hearing learned counsel for the petitioner and examination of the relevant pleadings of the parties, (counsel for respondents remaining absent) I am of the considered view that the two expressions and trade names used by the parties are neither similar in get up, colour scheme nor shape of the liable so as to deceive an innocent buyer to buy one or the other. Even phonetically both trade names are enormously distinctive. At any rate, petitioners are unable to make out any vested right to challenge the registration of the trade make in favour of respondent No. 1. registered as far back as March, 1989 and the Registrar does not seem to have violated the provisions of the Act by allowing registration of the trade mark in favour of respondent company. Additionally, petitioners are neither the registered proprietors of the trade mark claimed by them nor are they adversely prejudiced by the product and trade mark of the respondent which is completely different, distinguishable and distinct in all respects and not violative of any rights that may be possessed by the petitioner.

5. Needless to point out connected Suit No. 848 of 1992 has been dismissed for non-prosecution today and the parties should continue to market their products on the principle of live and let others live "rather than agitate rival and jealous claims against each other. They can possibly avoid unnecessary and uncalled litigation without any meaningful results.

6. No other point worth consideration has been urged at the Bar in support of the petition and seemingly parties dragged each other on account of business competition and rivalries but monopoly in trade and business could not be claimed by either of them. No authority is required for the view taken by me yet a reference may be made to Bubble Up Company v. Seven Up (PLD 1975 Karachi 582), Pakistan Tobacco Company v. West End Tobacco Company (1992 CLC 1728) and Badre Munir Chemical Works v. Muhammad Din (1991 CLC Note 113 at p. 92).

7. For the aforesaid facts and reason, I hold that the petition is not maintainable and it is without any merit. It is accordingly dismissed with no order as to costs. A.A./E-7/K Petition dismissed.