2007 PLP 463 (CLD)

MRS. YASMIN ABBASEY, J.

This appeal has been directed against the order dated 28-9-2002 of Registrar of Trade Marks at Karachi in Opposition No.70 of 1999. The facts leading to the case are that the appellant Messrs Union Match (Pvt.) Ltd., filed an application for registration of Trade Marks on 1-1-1995 under No.128179 in Class

34. The said trade mark was advertised in Trade Mark Journal No.561 dated 1st October, 1997. Respondent Messrs Lakson Tobacco Company Ltd. filed objection before the Registrar being No.70 of 1999 on the ground that very trade mark Union was registered in favour of their company vide No.37926 in class 34 in respect of cigarettes, and they are doing their business under the same mark since 1980. Therefore, the application of the appellant for registration of very trade mark Union for 'match' will create confusion and deception in the mind on common purchaser as both the goods are inter connected each other. It is argued by the learned counsel for the appellant that the appellant is using this trade mark since 1995 and is running business under the same name, of match and lighter, whereas the products sold by the respondent is cigarette an absolutely different product to that match and lighter. In support of his arguments learned-counsel for the respondent has referred 1989 MLD 1598, wherein it is observed that:-- "It is not possible to accept the finding of the Deputy Registrar that there is a connection between the goods safety matches and cigarettes as both sets of goods are sold on the same counter. Though safety matches are used for lighting the cigarettes they cannot by themselves become cigarettes tobacco and cigar. Likewise cigarettes, tobacco and cigar, though they are used for smoking can never be treated as articles for lighting stone of a cigarette, Apart from the fact that both these sets of articles cannot be brought under the description of the articles of smoking, it is well known that the articles can be classified either on the basis of their use or on the basis of their contents elements out of which they were manufactured or from the mode of their production. As already stated the Deputy Registrar in this case has not specifically considered the applicability of section 8(a) to the case in hand. The impugned order of the Deputy Registrar is therefore, set aside and the appeal is allowed and the application is remanded." In the case referred above both the products i.e. match and cigarette were identical, as that of the present case, but the fact that respondent is running his business under the mark since 1980 whereas this appellant had applied for the same on 1-1-1995 is undisputed one. So far as the case pleaded by him in appeal under disposal and argument advanced by learned counsel for appellant that they are using this mark since 1995 does not find support from the record as in his application for registration of mark Union moved on 29-12-1994 he himself has stated that the trade mark applied for registration is proposed to be used for matches and Gas lighters and the printed words "being used" has been cut down. This fact has also been discussed by the Registrar in his order. So this very statement of the appellant specifically stating that as the same will be used by him after getting registered in his named belies the statement of the learned counsel for the appellant that he is using the same since long in contrary to this it is further added by the learned counsel for the respondent that the case of the appellant for registration of same trade mark also does not require any consideration because the class in which the appellant had applied for registration of trade mark is the same which is used by respondent for cigarette therefore, there is likelihood of having general impression on the general buyer that having an interdependent use of them goods of the same trade mark also belongs to the same company who has manufactured cigarette in support of his contention learned counsel for respondent has referred section 10(2) of Trade Marks Act, which reads as under: "Subsection (2), no trade mark shall be registered in respect to any goods or description of goods which is identical with a trade mark belonging to a different proprietors and either already on the register in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion." Learned counsel for the appellant has also referred 1989 MLD 1598; KLR 1987 Civil Cases 322; PLD 1987 Karachi 119; PLD 1986 Karachi 482 and lastly PLD 1978 Karachi 161, wherein it is observed that "where the opposition is entered-an application is contested, Registrar would be required to give reason for grant or refuse of application for registration", but the perusal of impugned order shows that it is very elaborative and requires no interferences. In view of the foregoing reasons this miscellaneous application stands dismissed. H. B.T./U-1/K Appeal dismissed.