P L D 1960 (W (PLP)

Jan Mohd. Dawood for Appellant. Muzaffar Hassan for Respondent. Date of hearing : 1st April 1960. This is an appeal against an order of the Registrar of Trade Marks, refusing registration of the appellant's trade mark in respect of Textile Piece Goods in class

24. The application was made on 25‑10‑55, and was later supported by a letter dated 18‑11‑58, and an affidavit dated 4‑9‑

59. The Registrar found that the trade mark filed by the appellants "prominently displayed the device of a cock which already prominently appeared in the registered trade marks Nos. 8272, 6455, 14691 and 17659", and was in his view likely to cause confusion and deception. He further observed that the applicants could not prove their concurrent user of the trade mark in question by producing relevant documents showing sales and turn‑over figures and advertising expenses for the period prior to the date of the application.

2. In appeal Mr. Dawood, the learned counsel appearing for the applicant‑appellant Messrs Dawood Cotton Mills, does not seriously contest the finding of the Registrar, Trade Marks that the applicant's mark closely resembles the previously registered trade marks or some of those which are pending regis tration, but he contends that even so the applicants' trade mark should have been registered under the provisions of sub section (2) of section 10 of the Trade Marks Act for the reason that there is honest and concurrent user on an extensive scale. He has also pointed out that there is no opposition by any existing holder of the registered trade marks displaying the same device. A final ground put forward is that the applicant was not afforded opportunity for producing evidence, against the undertaking given by the Deputy Registrar of Trade Marks.

3. As regards the question of opportunity for producing evidence, Mr. Muzaffar Hassan, the learned counsel appearing for the Registrar of Trade Marks, Karachi, has drawn my attention to the diary of the Registrar of Trade Marks wherein there is an entry dated 6‑2‑60, by the Deputy Registrar that he had no talk with Mr. Dawood, the learned counsel for the applicant, regarding adducing evidence. It is also stated that the usual practice of the Registrar of Trade Marks is not to record evidence, but to decide cases on the basis of affidavits, which has been done in this case. In view of these facts, I consider that there is no force in the contention raised by Mr. Dawood that opportu nity was not afforded to the applicants for producing evidence.

4. As regards the question of opposition by any of the existing holders of similar registered trade marks, the position is that the applicants' trade mark was not published as the Registrar refused to consider its registration and accordingly no opportu nity arose for the holders of existing Trade Marks to put in any opposition. The absence of any opposition cannot therefore be used in favour of the appellant.

5. The real question in this appeal concerns the concurrent user of the appellant. In the application itself the date of commencement of the user was given as November 1953, but from the affidavit filed subsequently on 4‑9‑59, it appears that the Mark was brought into use by the applicant in the year 1955. The figures given in the affidavit relate to the year 1955‑56 and subsequent years. There are no figures of the quantities sold under the Trade Mark in question before the financial year 1955‑

56. It would thus appear that the evidence on record does not establish an extensive user of the Trade Mark for any length of time before the application for registration was made in October 1955. The Registrar of Trade Marks was therefore right in observing that no figures have been supplied with regard to user before the date of the application, which is the relevant date for determination in this case. The fact that after the date of, application the appellants have sold large quantities of goods bearing the trade mark in question, is not relevant in determining A whether there has been honest and concurrent user within the meaning of section 10 (2) of the Trade Marks Act.

6. Further, there is also the question whether the concurrent user in this case has been honest, in view of the fact that there were already at least three registered trade marks bearing more of less the same device in respect of Textile Goods of the class with which we are here concerned. Mr. Dawood has argued that the appellants were not aware of the other registered trade marks, when they started using :this particular trade mark for their goods, but such an assertion seems to be unacceptable. The appellants are in the textile business and the other registered holders of the resembling trade marks have been selling their goods in the market since 1948, and 1951, respectively, and therefore, it is difficult to believe that the appellants would not have come to know of the existence of the previously registered trade mark bearing the device of the cock. However, it is further contended by Mr. Dawood that even if the appellants be presumed to have knowledge of the existence of the registered trade marks, their user can still be honest While it is true that mere knowledge of the existence of a similar trade mark on they register does not necessarily prove dishonesty on ,the part of the applicant, but as observed by Lord Tomlin, it is a matter "not to be wholly overlooked in balancing the considerations for and against registration" 50 R P C 149.

7. It appears to me therefore that in the present case the appellants have not succeeded in proving honest and concurrent user of the trade mark for any length of time or on any. exten sive scale before the date of the application in October 1955, and the figures of turn over contained in their affidavits filed in September 1959, cannot be used to advance their case, as they relate mostly to a period subsequent to the date of the application,

8. It is well established that the Court will attach great weight to the Registrar's opinion upon matters falling Preemi nently within his experience, and for that reason the discretion exercised by him must be respected, unless it is found that the discretion has been exercised improperly or arbitrarily. This is not the case here. I would therefore dismiss the appeal with costs. K. B. A. Appeal dismissed.