P L D 1955 Sind 345 (PLP)

INAMULLAH, J.‑This is an application for injunction restraining ‑the defendant from interfering and obstructing the plaintiff from clearing the consignments of Raja Nibs from the Collector of Customs and further consignments. Further relief claimed is that the defendant be restrained from importing Raja Nibs or selling the same in Pakistan. An application under order 39 Rules 1 and 2 Civil P. C. was made praying that the defendants be restrained from inter fering or obstructing the plaintiff from clearing the consign ment of Raja Nibs from the Customs and for importing Raja nibs and other items of stationery with the trade mark "Raja" thereon. At the outset I may say that so far as the prayer in the application for injunction relating to the import of Raja nibs is concerned, Mr. Sultan Ahmad does not press it. The application arises under the following circum stances. The plaintiff is a dealer and Importer of various items of stationery such as, nibs etc., under the trade mark " Raja ". The plaintiff has made an application for the registration of the Trade Mark " Raja " with the Registrar of trade marks under the Trade Marks Act 1940. That application is still pending. The main contention of the plaintiff is that he is the sole agent for Raja nibs from Messrs. Walter Emmermann, 20 Humburg‑13, Western Germany. It would also appear from the plaint that the defendants had approached the principals of the plaintiff for the supply of the Raja nibs; but they refused to do so as the plaintiff was the sole agent of Walter Emmermann. The plaintiff has filed along with the plaint a letter dated 27th, December 1954 from the defendant to Messrs, C. V. Willart who are the manufacturers of Raja nibs, asking them to supply them Raja nibs. Another letter is dated 31st December, 1954 by C, V. Willart imforming the defendant that they should approach Walter Emmermann for the same. The other letter is dated 26th January, 1955 by Walter Emmermann to the defendants informing them that they are unable to supply Raja nibs as their sole agent is Haji Shams‑ul‑Haq Anwar‑ul‑Haq', the plaintiff in the present case. Walter Emmermartn advised the defendants, to approach the plaintiff. It appears from the narration of facts that the plaintiff's suit is not for infringement of trade mark or for passing off, but it is based on the fact that he is the sole agent of a certain firm which manufactures Raja nibs and that he has been dealing with the same for a number of years, I am told since 1921, through the same firm. His contention is that, as the sole agent of that firm for a number of years, he has a right to import Raja nibs from Germany and sell the salve and that the defendant has no right to obstruct him from carrying on his trade. In other words, the contention of the plaintiff is that the defendant cannot put any restraint upon his trade of Raja nibs. The defendant, on the other hand, has contended very strenuously through Mr. Fakhr‑ud‑Din, the learned advocate, that he has in his favour a registered trade mark for foun tain‑pens. The registration certificate is dated 27th July 1953, relevant portion of which reads as under: " It is hereby certified that the Trade Mark " Raja " (word per S C) No. 4502 was registered under date the 18th November, 1942 in class 16 in respect of Fountain Pens and that B. P. Clubwalla and Miss D. J. Billimoria Indians, trading as the Great Indian Trading Co. 70‑C, Hoshang House, Cumballa Hill, Bombay, Manufacturers and Dealers, are registered as proprietors of the said Trade Marks." It would appear from the above narration that the registra tion was in respect of fountain pens. The suit has been filed against the Golden Pen Manufacturing Company. It is stated by the defendant company that the registered user of this trade mark is one of the partners of the defendant, by name Abbas. It is so, as would appear from the registra tion certificate. It has been contended by the plaintiff that he has started proceeding before the Registrar of Trade Marks challenging the registration of trade mark in favour of B. P, Clubwalla and Miss D. J. Billimoria. It is also contended that the plaintiff has also applied for registration of trade mark of Raja nibs. The short question before me is, whether in view of the fact that the defendant is a registered user of the trade mark, the plaintiff has been able to make out a prima facie case for injunction restraining the defendant from interfering with his right to take delivery of the goods from the Customs or not ? The contention of Mr. Fakhr‑ud‑Din was that, once the trade mark has been registered, no other person has any right to the use of the same and he is entitled to the rights given under section 21 of the Trade Marks Act 1940. The Trade Mark proprietor no doubt is entitled to certain right but that is subject to certain provisions given in the Trade Marks Act itself. One of the provisions is con tained in section 25 of the same, relevant portion of which reads as under: " Nothing in this Act, shall entitle the proprietor or a registered user of a registered trade mark to interfere with or restrain the use by any person of a trade mark identical with or nearly resembling it in relation to goods in relation to which that person or a predecessor in title of his has continuously used that trade mark from a date prior‑-- (a) to the use of the first‑mentioned trade mark in relation to those goods by the proprietor or a predecessor in title of his, or (b) to the registration of the first‑mentioned trade mark in respect of those goods in the name of the proprietor or a predecessor in title of his, whichever in the earlier, or to object (on such use being proved) to registration of that identical or nearly resembling trade mark in respect of those goods under subsection (2) of section 10. " I am satisfied from a number of documents that have been placed before , me by the plaintiff that he has been the Importer of Raja nibs since a very long time, 1921. Moreover, from the registration certificate which I have reproduced above, it is open to argument, whether fountain pens would also include Raja nibs under the Trade Marks Act. Section 11of the Trade Marks Act gives right to the defen dant to apply to have the registration of the nibs effected separately. The relevant portion of section 11 reads as under : " Where the proprietor of a trade mark claims to be entitled to the exclusive use of any part thereof separately, he may apply to register the whole and the part as separate trade marks." The object of the above section is that the proprietor of a trade mark if he claims to be the exclusive owner besides the fountain pens, or any other articles, say nibs he should also, in order to avoid future litigation, approach the authorities concerned to register the same in his favour. In this case, from the registration certificate which was produced before me by Mr. Fakhr‑ud‑Din, I do not find that the proprietor has proceeded under section 11 to have the trade mark of " Raja " registered in respect of the nibs also. In the present case in view of section 25 of the Trade Marks Act of 1940 and also in view of the fact that the plaintiff has challenged the registration before the Registrar of Trade Marks and has also applied for registration in his own favour of Raja nibs. I am satisfied that the plaintiff has been able to make out a prima facie case. The plaintiff's case; as I have already made clear, should not be confused with a passing off action or with the infringement‑of‑trade mark suit. This is a suit based on his right as sole agent of certain firm for a long time of Raja nibs, and to import Raja nibs and to clear its consignments. Moreover, the balance of convenience is also in favour of the plaintiff. He has been importing Raja nibs for now about 30 years and has been making his living thereon. If the defendants had any grievance against that, they should have got the registration made clear so far as Raja nibs are concerned. For the reasons given above, I would restrain the defendants from interfering and obstructing the plaintiff from clearing the consignments of Raja nibs from the Collector of Customs. A. H. Injunction granted.