P L D 1992 Karachi 15 (PLP)

Appellants have filed this appeal under section 76 of the Trade Marks Act against rejection of an application moved under section 14 of said Act for registration of trade mark "TIP TOP". On 20‑7‑1987 the appellants moved an application under section 14 of said Act, for registration of trade mark "TIP TOP" in class‑3 in respect of Bleaching preparations etc. Said application was dismissed on the grounds that the applied mark was similar if compared as a whole to the already registered trade mark "TOP" for toilet soaps and shampoos etc., and to the already registered trade mark "TIP JOB" for detergents, laundry soaps etc., and to the already registered mark "TIP and TOPS" for cosmetics and that the applied mark "TIP TOP" was a mere combination of the words taken from the registered marks and that if the mark ‑FIP TOP" was allowed it would cause confusion by itself in the course of trade and would also render ineffective and meaningless, the previously registered trade marks viz. "TOP" and "TIP JOB" and TIP and TOES". Mr. Salim Ghulam Hussain, learned counsel for the appellants argued that there was no similarity between the trade mark proposed to be registered and the trade marks already registered and that there was no resemblance likely to deceive or cause confusion to unwary purchasers. In support, learned counsel for the appellants cited the case of Block Drug Company INC v. The Registrar Trade Marks (C.M. Appeal No.10 of 1990, C.M. Appeal No.11 of 1990) decided by the Hon'ble Chief Justice of this Court on 5‑3‑1991, and the case of Assistant Registrar of Trade Marks v. M/s. Lakson Tobacco Company Limited (Civil Petition for Leave to Appeal No.147‑K of 1988) decided by the Hon'ble Supreme Court of Pakistan on 16‑1‑1990. In former case a company applied for registration of two trade marks namely 'Dentucream and 'Dentugel' but such prayer was rejected by the Registrar Trade Marks on the ground that the trades marks proposed to be registered were similar to another registered mark 'Dentro' and another mark 'Denture' which were under consideration for being registered, while an application for registration of the mark 'Dentugel' was refused on account of its‑being similar to a registered trade mark 'Dentogene'. In said case it was observed by the Hon'ble Chief Justice of this Court, that the question* of similarity of the trade mark sought to be registered, with other registered trade marks, should not have been decided by the Registrar at the preliminary stage and this question should have been left to be decided after the trade marks proposed to be registered, were advertised and opposed by any of the owners of the already registered trade marks in accordance with the rules contained under the Trade Marks Act. In the Supreme Court case M/s. Lakson Tobacco Company limited moved for registration of trade mark 'Clipper' in class 34 in respect of Cigarettes, tobacco manufactured and raw, smokers' articles, etc. Said application was later on amended and registration of trade mark 'Lakson Clipper' was sought. The Assistant Registrar of Trade Marks declined the application, on the ground that the trade mark 'Clipper' had been already registered as "Player's Clipper Notingham Castle" and "Clipper". Order of the Assistant Registrar of Trade Marks declining to register the trade marks as proposed by M/s. Lakson Tobacco Company Limited, was set aside in appeal by a learned Judge of this Court, who remitted the case to the Assistant Registrar of Trade Marks for issuing notices to the proprietors of the already registered trade marks and for decision after publication in accordance with law The Supreme Court of Pakistan declined to interfere with such decision by learned Judge of this Court. In the instant case the Assistant Registrar of Trade Marks rejected the application of the appellant at a preliminary stage without issuing any notice to proprietor of the trade mark 'Top' or to proprietor of the trade mark 'Tip Job'. In view of the case law cited at the bar, I hold that order of the Assistant Registrar requires to be set aside. 1, therefore, accept this appeal and set aside the impugned order and direct that case of the appellant be processed and due notices be issued to proprietors of the registered trade marks 'Top' and 'Tip job' and 'Tip and Toes' and application of the appellant be advertised and then decision taken it accordance with law. AA./C‑227/K Order accordingly