1988 PLP 1052 (CLC)

Date of hearing: 17th March, 1988. This appeal under section 76 of the Trade Marks Act, 1940 has been filed against the decision of learned Registrar of Trade Marks, Karachi dated 10‑8‑1987 whereby he refused registration of the Trade Mark application of the appellants.

2. The facts giving rise to this appeal are that the appellant had filed an application for registration of words "PARAS KAE TUKRAE'', letters J.P. and device of Flowers in respect' of Sweet Supari on 23‑2‑1986 and was allotted serial No.89395 in Class‑

30. On examination the learned Registrar found that it was objectionable under section 6 (1),(d) (e) and under section 8 (a) of the Trade Marks Act on the basis of conflicting marks No.89453 and 87474 in Class 30 and such show‑cause notice was given to the appellant, who submitted reply to that show‑cause notice.

3. From the order it appears that the learned Registrar heard the appellants and the Proprietor of mark No.89453 separately and came to the conclusion that the proprietor of the mark No.89453, had proved ‑ the user of the mark since 1982, when the appellants could prove user of mark only for one month and 23 days. On that ground he refused registration of the mark of the appellants.

4. The main grievance of the learned counsel for the appellant Mr. Syed Shaukat Ali is that the procedure adopted by the learned Registrar was against the principles of natural justice and equity as well as against the provisions of law inasmuch as the learned Registrar has based his opinion on the evidence which was recorded and heard in absence of the appellant.

5. The Proprietor of the mark No.89453 Mr. Mohammad Rafiq has filed an application in his Court bearing C . M . A . No.1099 of 1987 for being joined as a party to this appeal. On 3‑12‑1987 by consent of the parties the Court has ordered that this application as well as the main application would be heard together. Consequently Mr. Khalil Qazilbash learned counsel for the Intervenor was also allowed to address the Court while hearing the appeal. His contention is that the learned Registrar had ordered search under Rule 23 of the Trade Marks Rules and on finding pending application of similar trade mark, he could suo motu refuse the registration. He has relied upon the case of Basra Soap Factory v. Punjab Soap Factory and another P L D 1973 Kar.

279. In that case a learned Single Judge of this Court has held that 'proper procedure with regard to objections filed to registration of trade mark under Rule 23 was to connect and hear together various applications and objections."

6. The learned Registrar in the instant case did not connect the two matters or hear them together, but even from his own judgmen it appears that he did not join together two pending applications, A but heard them separately and on the basis of his conclusion in on application refused the registration of the application of the appellants. Section 70 (c) of the Trade Marks Act provides as follows:‑ "S.70. In all proceedings under this Act before the Registrar:‑ (a) ............................................................. (b) .............................................................. (c) the Registrar shall not exercise any power vested in him by this Act or the rules made thereunder adversely to any party duly appearing before him without (if required in writing Within the prescribed time so to do) giving such party an opportunity of being heard."

7. Admittedly on show‑cause notice from the Registrar, the appellants had replied to the notice asserting his user in preference to the user by the Intervenor and the learned Registrar instead of joining the two applications, heard them separately and on the basis of evidence adduced in Application No.89453 came to the conclusion that user of the mark of that application was prior in time to the user of the mark by the appellant and that the application of the appellant was a copy of the mark filed in application No.89453. This order of the learned Registrar did adversely affect the appellant and was passed on the basis of evidence recorded at the back of the appellant and as such he cannot be said to have been given reasonable opportunity of hearing.

8. In my opinion the procedure adopted by the learned Registra violates the provisions of section 70 (c) of the Trade Marks Act and Rule 23 of the Trade Marks Rules and is also against the principles of natural justice, and is, therefore, liable to be set aside.

9. Mr. Khalil Kazilbash learned counsel for the Intervenor has admitted that the application for registration of mark of Mohammad Rafiq, the Intervenor, is still pending before the Registrar. As such the appeal is allowed and the impugned order is set aside. The learned Registrar is directed to join together both the applications, and decide the same after giving opportunity to both the parties o proper hearing in accordance with law. Under the circumstances o the case, the parties are ordered to bear their own cost. A. A. /I‑40/ K Appeal allowed.