1991 PLP 796 (SCMR)

Jamia Industries Ltd. v. Caltex Oil (Pak.) Ltd. and another P L D 1984 SC 8 and Ekhlas Ahmad v. Dae Health Laboratories Ltd., London and another 1980 S C M R 625 rel. (b) Trade Marks Act (X of 1940)‑‑‑ ‑‑‑‑S. 8‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Registration of trade mark‑‑‑Wrappers produced in Court to determine dissimilarities were found to be totally different from what appellant had submitted with application for registration‑‑‑Both parties accused each other of misrepresentation and fraud‑‑ Difference between two wrappers, one produced in Court and the other attached with application for registration was so obvious that even an unwary, unsuspecting and innocent person could not have been misled‑‑‑Supreme Court dismissed appeal with remarks that both the parties would be at liberty to seek permission to prosecute each other for misrepresentation and/or act of fraud, if any, committed during Court proceedings. Raja Muhammad Akram, Senior Advocate Supreme and Manzoor Elahi, Ex Advocate‑on‑Record for Appellant. M. Bilal, Advocate Supreme Court, Maulvi Sirajul Haq, Senior Advocate Supreme Court and M.A. Siddiqui, Advocate‑on‑Record for Respondents. Date of hearing: 13th November, 1990. MUHAMMAD AFZAL ZULLAH, CJ: ‑‑This appeal through leave of the Court is directed against the judgment of the Lahore High Court, dated 22‑4‑1987; whereby the appellant's appeal in a matter arising out of proceedings under Trade Marks Act, 1940, was dismissed. The facts and points noted in the leave grant order are as follows:‑‑ 'The dispute in this case relates to registration of a trade mark. The respondents made an application for registration of their trade mark printed on the wrapper of their washing soap having the device of a cat with words Billi Marka'. The petitioner, who is also engaged in the manufacture of washing soap, has been using a wrapper for its goods with a device showing a cat and the name `Milan Soap' which was registered as their trade mark. The petitioner, in the circumstances, filed an objection for the registration of the label of the respondents claiming that such registration was violative of the provisions of sections 8(a) and 10(1) of the Trade Marks Act. The objection of the petitioner was, however, dismissed by the Registrar of Trade Marks and the appeal taken to the High Court from such order was also dismissed by the learned High Court as per impugned judgment. "It was contended by the learned counsel for the petitioner that notwithstanding the different names used by the petitioner ‑ and the respondents having phonetical dissimilarity, the prominence of the device being that of a `Billi' was quite deceptive for an unwary customer particularly illiterate public. Reliance was placed by the learned counsel on Jamia Industries Ltd. v. Caltex Oil (Pak) Ltd. and another (PLD 1984 Supreme Court 8) and Ekhlas Ahmed v. Dae Health Laboratories Ltd., London and another (1980 SCMR 625). The contention raised in the petition requires examination and leave is accordingly granted." During the course of hearing of this appeal when the question regarding "identical or similar" trade mark was being examined in depth with the assistance of the learned counsel for the appellant, and when nearly 10 dissimilarities in the two trade marks as marked on the paper book at page 32, had been pointed out to the learned counsel and he was arguing that mere dissimilarities are not enough to determine the matter, we asked for the original wrappers ‑‑ at page 32 there are only photo copies. The original produced by the clients of the learned counsel for the appellants present in Court were the same as were represented by copies at page 32 of the paper book. The learned counsel for the respondents not only objected but protested and his clients stated that the wrapper and soap being represented as of respondents' is a misrepresentation. They produced plastic bags carrying advertisements for their merchandise which drastically differed from what was represented by the appellants through their counsel. This created a very serious situation. Learned counsel for the appellant was told to warn their clients as their act might amount to an attempt at fraud. They through their counsel insisted that the misrepresentation was in fact now being made by the respondents themselves. Accordingly, the two soap samples were seen, and we also looked at the wrappers submitted with the application for registration (taken out from the original records). They were totally different from what the appellants represented before the Court. This was shown to the learned counsel for the appellants who after informing their clients in this behalf could not advance the case any further, the difference between the two was so obvious that what he termed as "unwary, unsuspecting and innocent persons" also could not have been misled. There was no alternative left except to dismiss this appeal with remarks that both the parties would be at liberty to seek permission to prosecute each other for misrepresentation and or an act of fraud, if any committed during the Court proceedings. There shall be no order to costs. A.A./A‑826/S. Appeal dismissed.