1988 PLP 850 (MLD)

This appeal calls in question the order passed by the learned Registrar of Trade Marks, dated 30‑1‑1983, declining to register the appellant's Trade Mark.

2. The facts of the case, as set out in the memorandum of appeal are that, the appellants are manufacturers of butter and other allied dairy products with a long standing in the business. The appellants in the year 1977 adopted a label consisting of the words "English Butter" and words 'EBM' in the centre of a monogram and other features. The application was examined by the learned Registrar and it was found that the words "English Butter" referred to the character and the quality of the goods and they also had reference to a geographical name and consequently he found that if the Trade Mark was registered, the same would offend against section 6(1) (d) of the Trade Marks Act, 1940. The letters EBM were also found to be per se not distinctive and consequently the entire label was found to be objectionable. Although the case of the appellants was that the mark was in use for about five years prior to the passing of the impugned order and some evidence was also adduced before the learned Registrar in this behalf but the learned Registrar which has consequently resulted in passing of the impugned order. 3, Mr. Khalil Qazilbash, learned counsel for the appellant, has vehemently argued that the words "English Butter" in no way refer to the character or quality of the goods and therefore, the learned Registrar was clearly in error while dismissing the application. Reliance has been placed by the counsel on some authorities such as Kohinoor Chemical Company Ltd. v. The Registrar of Trade Marks (1986 C L C 649) Messrs Glaxo Laboratories Ltd. v. The Registrar of Trade Marks (P L D 1985 Kar. 60) and Messrs Murttembergisch: Parfumericgurrbh v. The Assistant Registrar of Trade Marks (P L D 1986 Kar 371). In the first case the words "French Girt" were held not to have direct reference to the character or quality of goods and it was further held that the goods sold under such Trade Mark would not lead to a conclusion that they were of a French origin. In the second case it was held that a Trade Mark should looked at as a whole and the Trade Mark Vitamilk was found to be registrar notwithstanding the provisions contained in section 6(1) (d) of the Trade Mark Act. It was further held that although the word Vitamiik might have suggested a reference to the quality or character of the goods of the applicant but since mark was not descriptive, the same was allowed to proceed to registration. In the last case reported in P L D 1986 Kar. 371 it was held that the Trade Mark "Lad Manhattan" could not be refused registration on the ground that the same contained geographical name of a village/town or a city in U.S.A. It was furthcr held that the words "geographical name" in section 6(1) (d) were restricted by the words "in Pakistan", and therefore, the same could not include a foreign name.

4. After hearing Mr. Qazilbash and perusing the authorities relied upon him, I find that his contentions are not without force. First of all the word "English" has no direct reference to the character or quality of the goods. Qizilbash has referred to many other Trade Marks wherein the names "English", "Indian [lead", 'Swiss Miss", "Dutch Lady", etc., have been registered in Pakistan, Be that as it may, but suffice it to say, that a Trade Mark is to be looked at as a whole. The Label Mark in question has been filed with this appeal and do not find anything objectionable therein which may offend against any of the provisions of the Trade Marks Act. The mere use of the words "English Butter cannot have reference to the quality and character of the goods. I, therefore, cannot agree with the conclusions of the learned Registrar in this respect. The learned Registrar also appears to have taken exception to the use of the words Prepared under the English Technics" as according to him the appellants had failed to offer any reasonable explanation as to whether they had imported any English technology in respect of the preparation or packing of the butter. Be that as it may. but on account of this objection the learned Registrar could not have declined to register the entire Trade Mark because the Trade Mark can be allowed to be registered with amendments or modifications or conditions or, limitations if any the Registrar may find fit.

5. The upshot of the discussion is that this appeal is allowed and the impugned order, dated 31‑1‑1983 is set aside and the Trade Marks in question "'shall be allowed to proceed to registration, subject, however, to the modification that the words prepared under the "English Technics" shall be deleted there from. There will be no order as to costs. M.Y.H/F‑62/K Appeal allowed.