2008 PLP 94 (CLD)

C.M. A. No. 6910 of 2007 NADEEM AZHAR SIDDIQI, J.

By this application the plaintiffs has prayed that defendant may be restrained from copying and/or applying the plaintiffs Registered designs namely 11357-D, 12310-D, 12311-D, 12312-D, 12328-D and 12329-D and plaintiff No.2's registered trademark No.187121 dated 19th July, 2003 namely "BODYCAP" and from making, importing, selling, hiring, offering to sell or hire or working articles bearing or embodying a design and/or trademark which, is a copy of the said registered designs. The facts 'necessary for disposal of the application are that tilt plaintiff No.1 is the registered proprietor of above mentioned designs registered under Designs Ordinance XLV of 2000 (hereinafter referred to as the registered designs) and the fibre canopies manufactured as per these designs are sold by the plaintiffs under the trademark " BODYCAP" duly registered in the name of plaintiff No.2. It. is alleged that the defendant is imitating the said designs and. applying the same to the canopies it manufactures, and sells. The notice of the application was served upon defendant for 20th, August, 2007 and 18th September, 2007 but the defendant failed to make 'any appearance and also fails to file any reply. The learned counsel for the plaintiffs submit that the plaintiffs' are the registered proprietors of the designs and trademark and have the exclusive right to use the said designs and trademark and the defendant by using the said designs and trademark violating their exclusive, rights. He further submits that the canopies made by.. the defendant" are similar to the canopies manufactured by the plaintiff and submits that for claiming infringement of registered designs it is not necessary that the imitation are substantially similar with the registered designs. The learned counsel has referred to the photographs of the registered designs as well as the photographs of the canopies manufactured by the defendant and submits that from looking two canopies it is established that they are similar to each other and are capable of creating confusion and deception. The learned counsel for the plaintiff has relied upon the 'following reported cases:- (i) Messrs Select Sports A.S. Co. v. Messrs Tempo Enterprises PLD 1998 Lahore 69; (2) Silver Cotton Textile Mills Ltd. and another v. Bawany Violin Textile Mills Ltd. PLD 1963 (W.P.) Karachi 79; (3) Muhammad Jahangir and another v. Hassan Qaiser and another 2004 CLD 516; (4) Messrs Team Nayyer (Pvt.) Ltd. v. Kamran Jamal Khan Suit No.495 of 2007; (5) Jamshed Aslam Khan v. Mrs. Azra Jawed and others 1995 CLC

436. I have heard the learned counsel for the plaintiffs and perused the record made available before rue. The plaintiffs by filing the photocopies of the certificates for registration of designs and certificate of Registration of Trademark "BODYCAP" established their right to exclusively use the design and trademark. The plaintiff by filing the photographs of the canopies manufactured by it and by the defendant has also established that both are similar to each other and are capable of creating confusion and deception. The defendant by not filing his reply has failed to rebut the above factual controversy. Subsection (2) of section 7 of the Registered Design Ordinance provides that the owner of a registered design shall have right to exclude third parties, not having his consent, from making, selling or working articles or embodying a design which is a copy of the registered design when such acts are undertaken for commercial purpose. The plaintiff No.1 being the Registered Proprietor of the designs mentioned above is entitled to exclusively use the same and defendant without his consent have no right to copy the same. Section 8 of the Ordinance deals with infringement. Subsection (1) of section 8 provides that if any person infringes a registered proprietor's right, the registered proprietor may bring a suit against him for the recovery of damages and for an injunction against the continuation of the infringement. Provided that for the purpose of grant of a temporary injunction, the registered proprietor must show that he has a prima facie case and that his design is valid and that it has been infringed by the defendant. The design of the defendant is almost similar to the registered designs of the plaintiffs and the Registered designs of plaintiff No. 1 are still valid. In the unreported case of Messrs Team Nayyer (Pvt.) Limited v. Kamran Jamal Khan (Suit No.495 of 2007) authored by my learned brother Mushir Alam, J. it was held as under: "After hearing the Federal counsel I have observed that there is apparently strong resemblance on both the canopies of the plaintiff and defendant and minor difference pointed out by the defendant, which are still subject to objection, cannot make much difference to remove the deception in respect to recognition as to whether both canopies are from one designer or not. The Registrar of design is also of the view that canopy of the plaintiff is registered with design No.12310-D while the design applied for by the defendant was refused." In a judgment from English jurisdiction reported as Valor Heating Company Limited v. Main Gas Appliances Limited, reported as (1973) RPC 871, [1972] FSR 497 the High Court of Justice, Chancellery Division has held that in considering registered designs the Court has taken the view that one had to consider infringement not merely upon the basis of a side by side comparison, but also upon the basis of having had a look at the registered design, then having gone away and came back and perhaps been put in a position of deciding whether some other article was the one originally seen. For claiming infringement it is not necessary that the two designs are similar to each other in all respect. Resemblance in two designs are sufficient to establish infringement. In this case the plaintiff prima facie established that the design of the defendant resembled with the registered designs of the plaintiff and is capable of creating confusion and deception. For the above reason the plaintiffs have made out a prima facie case in his favour and the balance of convenience is also in their favour and in case the injunction is not granted they will suffer irreparable loss and will be deprived from the benefits of the registered designs. In view of the above the application is allowed as prayed with no order as to costs. S.A.K./T-21/K Application accepted.