P L D 1955 Sind 445 (PLP)

AGHA, J.‑The plaintiffs have brought this suit for an injunction restraining the defendants from infringing their trade mark. The suit relates to "Sunlight" Soap manufactured by Lever Brothers, who have assigned their trade mark in respect of this soap to the plaintiffs. The plaintiffs' case is that this soap has been for the last fifty years, manufactured by Lever Brothers in the United Kingdom, India, Karachi and elsewhere in Pakistan under the distinctive name of "Sunlight" in cartons bearing a label of a distinctive get‑up. From the beginning of 1943, the soap has been sold in a wrapper of distinctive get‑up. In 1943 Lever Bros. got this trade mark "Sunlight" registered in India. The defendants are the manufacturers of Soap called "Day light" soap. This is sold packed in wrappers such as are calculated to deceive an ordinary purchaser into believing that he is purchasing the soap of the plaintiffs' manufacture. There is now no dispute in this case that the "Sunlight" soap has been manufactured and sold by Messrs. Lever Brothers for the last fifty years or so in Karachi and other places in Pakistan. The defendants have not denied that Lever Brothers and their successors have the exclusive right to use this trade mark. The affidavit filed on behalf of the defendants shows that they have been manufacturing and selling "Daylight" soap in Pakistan since the last 15 months only. I have before me the two soaps. It is true that the names differ, one is called "Daylight" and the other is "Sun light." But there is no doubt whatsoever that there are so many points of similarity between the two with regard to the get‑up of the wrapper in which they are sold that an average man exercising ordinary caution can easily be deceived into believing that the "Daylight" soap offered to him is the soap manufactured by the plaintiffs and sold under the name of Sunlight" soap. Undoubtedly, if the two soaps are placed together and considered carefully, there are many points of dis‑similarity in the wordings and the design on the wrapper, but an ordinary purchaser hardly has a chance of comparing the two by placing them side by side. There is no doubt that the general get‑up of the two soaps in this case has so many points of similarity that. it is clear that the plaintiffs have made out a prima facie case, and this is all that is required for the purpose of decision of this application. I am avoiding to discuss in detail the points of similarity and dis‑similarity, because I am not deciding the case finally. There is, however, no doubt whatsoever in my mind that the plaintiffs have made 'out a prima facie case. The next thing to be considered is the balance of conve nience. On their own showing, the defendants have started manufacturing their soap only recently, while the plaintiffs have been manufacturing their soap since last 50 years or so. It would, therefore, not be proper to allow the defendants to disturb the state of things by putting on the market a large supply of their new article, which may turn out to be an infringement of the plaintiffs' right. The balance of convenience, therefore, undoubtedly lies on the side of the plaintiffs. I would, therefore, allow the application and confirm the interim injunction granted. A. H. Application for injunction allowed.