P L D 1992 Karachi 395 (PLP)

The Appellants M/s. American Cynarnide Company of U.S.A. are registered proprietors of Trade Mark "CYCON" in respect of goods in class 5 (Pharmaceutical, veterinary and sanitary substances; infants and Invalids' foods; plasters, material for bandaging; material for stopping teeth, dental vax; disinfectants; preparations for killing weeds and destroying vermin). Their mark was registered on 1st October, 1981 anid necessary certificate issued to them by the Registrar of Trade Marks. The respondent No.1 * M/s. Arrow Trading Company Ltd., Karachi applied for registration of Trade Mark "HICON" on 17th November, 1985 in the same class of goods for their pesticides * and insecticides. Their application was registered under No.88248. The Registrar, Trade Marks, Karachi advertised it in the Trade Marks Journal on 1‑12‑1987. The Appellants served a notice of opposition in terms of Section 15(2) of the Trade Marks Act, 1940. They claimed that they have worldwide reputation of producing products failing under class 5 of the classification of goods as adapted in Pakistan with particular reference to pharmaceutical veterinary and sanitary substances and pesticides and insecticides etc. Some of their products are produced under their trade mark "CYCON". According to them the Respondent M/s. Arrow Trading Co. had applied for the registration of a trade mark "HICON" solely to deceive and confuse the consumers. On such grounds they claimed that the mark cannot be granted registration under Section 10(l) of the Trade Marks Act, 1940. Their such notice was registered as Opposition Case No.145 of 1087. The Registrar of Trade Marks, Karachi, after appraising evidence adduced by the parties before him, dismissed the opposition recorded by the Appellants on 5‑3‑1989. It is against this decision that the present appeal under Section 76 of the Trade Marks Act, 1940 has been filed. Mr. Khawaja Mansoor, Advocate for the Appellants, contended that the consumers of the goods manufactured by the Appellants under the Trade Mark "CYCON are mostly illiterate farmers and the mark applied for registration by the Respondents is so similar to the mark of the Appellants already registered that the possibility of confusion and deception among such consumers cannot bL avoided. He further contended that the Registrar of the Trade Marks, Karachi has not given reasons for his conclusion arrived lit in the decision impugned in this Appeal. He referred to the cases reported in 1987 MLD 91, PLD 1977 Karachi 858, PLD 190) Karachi 547 and PLD 1973 SC

104. Mr. Sultan Ahmed Shaikh, Advocate for Respondent No.1, supported the decision of the Registrar of the Trade Marks and stated that the. trade mark applied for by them is distinct from the registered trade mark of the Appellants. Under the circumstances, according to him, there, can be no confusion or deception among the consumers of the goods. He referred to the case reported in PLD 1973 SC 104, laying down the test of comparison between the trade marks and according to him test laid down therein is fully followed in the decision irnpugned in (lie Appeal. tic also referred to the cases reported in 1980 CLC 11‑72, 1984 CLC 2478, 1987 CLC 1539, PLD 1970 SC 400,30 R.P.C. 73,64 R.P.C. 125, PLD 1973 Note (A) at p.82,1987 MLD 2752, PLD 1977 Karachi 858 and AIR 1900 S.C. 142, to show that the mark applied for registration is a distinct mark. He further contended that the Registrar of Trade Marks on the basis of evidence produced by the parties and in exercise of‑ his discretion under the law has passed the decision impugned in this Appeal. The Appellate Court under the circumstances will honour such decision and would be slow in interfering with it. In the case reported in 1980 CLC 1272 the marks "POLO" and "SOLO" were considered to be dissimilar marks. Marks "PFAFF' and "TUFF" were held distinguishable from each other in the case reported in 1984 CLC 2478. Marks "MEM" and "REM" were held to be distinct marks in the case reported in 1987 CLC 1539. Marks "ASPRO" and "DISPRO", "SAIGON" and "DIAGON", though having common endings, were held to be distinct marks because of different prefixes in the case reported in PLD 1973 ‑Note 60.at p.82. In view of above decisions and the test laid down in the judgment reported in PLD 1973 SC 104 referred to by the counsel of both the parties, I find no fault with the decision of the Respondent No.2 in dismissing the Opposition filed by the Appellants. The Appeal is therefore dismissed. H.B.T./A‑1193/K