P L D 1962 (W (PLP)

(ii) The requirements of their Distributing Companies shall be included in the requirements of the respective Parties hereto and shall be subject to the conditions contained in this agree ment. (iii) . . . . . . . . (iv) Unless otherwise unanimously agreed between the Parties hereto of the first, third, fourth, fifth, sixth and seventh parts of the Manufacturing Company shall place at the disposal of the Parties hereto of the third, fourth, fifth, sixth and seventh parts on the one hand and of Hyesons on the other hand and they shall respectively take one‑half of the total number of lamps of each category [i.e. (1) Incandescent Lamps (2) Fluorescent Lamps (3) other types of Gaseous Discharge Lamps] produced by it from time to time under its planned produc tion".

20. Clause 13 deals with the nature of the Manufacturing Company's business, and reads as follows :‑ "

13. The Manufacturing; Company shall be operated solely as a manufacturing enterprise for the benefit of the Parties hereto of the first, third, fourth, fifth, sixth and seventh parts and their respective Distributing Companies and no products of the Manufacturing Company shall be sold by it except to or through the Parties hereto."

21. Clause 15 provides that the operations of the Manu facturing Company shall be so conducted as to provide fair and equal service for the respective parties of the first, third, fourth, fifth, sixth and seventh parts. Clause 16 lays down that the parties to the agreement, referred to above, were not to become interested directly or indirectly in any lamp manufacturing enterprise in Pakistan other than the Manufacturing Com pany during the subsistence of the agreement. Clause 19 provides that upon the termination of this agreement, Hyesons are granted a non‑exclusive, non‑divisible, non‑transferable licence under such Pakistani patents of the third, fourth, fifth, sixth and seventh parts on payment of certain royalties and subject to other terms provided in that clause.

22. In pursuance of these two agreements, the defendant- Company, described as the Manufacturing Company in the Working Agreement, was promoted and began to manufacture lamps for the parties and their assigns as provided in the Working Agreement.

23. On 27th July, 1956, a resolution was passed by majority whereby the Working Agreement was terminated. The resolution is contained in Exh. D./36. Soon thereafter the supply to the European companies was reduced, at the instance of the majority share‑holders from 50 per cent of the entire produce to 30 per cent. This was done evidently in view of the fact that the Eupropean companies held 30 per cent, share in the defendant Company, while the remaining 70 per cent was held by the two brothers named above. It was admitted by Mr. Zari at the Bar that in all other respects the terms of the Working Agreement continued to be given effect to notwithstanding its termination. This was followed by the termination of the Main Agreement by the European companies, as shown by their letter dated the 30th September, 1957 (Exh. D./35) whereby they also called for the liquidation of the Manufacturing Company. The arrange ment, however, continued with the sole variation that the European companies received 30 per cent of the product of the Manufacturing Company instead of 50 per cent.

24. In a meeting of the Board of the defendant Company held on the 20th February, 1961, it was decided by majority, and in spite of the protest by the European Companies, that the defendant Company will take over the entire sales of lamps with effect from the 15th March, 1961. The resolution is Exh. P/11. It was also decided in that meeting that the next meeting be held on the 6th March, 1961. In that meeting the question of administrative details consequent upon the Board's resolution, dated the 20th February, 1961, came up for con sideration. The Directors representing the European Companies took the stand that the lamps under the European Partners' brands could only be sold by their Distributing Companies, and not by the defendant Company as the latter definitely could not use their trade‑marks. The Directors of the opposite group did not accept this position and it was, therefore, suggested that legal advice on the point should be obtained. It was decided by majority that pending legal advice, the defendant Company will manufacture and sell only Hyesons brand lamps with effect from 15th March 1961. The resolution of the Board is contained in Exh. P/12. A lawyer's letter was then addressed to the defendant Company on the 11th of March 1961 (Exh. P/13) requiring it to give confirmation in writing on the following points :‑ "(a) that it has no intention to, and shall not, manufacture any lamps with the names/brands/trade‑marks and/or labels of my clients or used by them for their goods except in execu tion of my clients' orders ; (b) that it shall not print or affix the names/brands/trade marks and/or labels of my clients' to or on any lamps except in execution of my clients' orders, and (c) that it shall not market or sell any lamps or use any packing or other material bearing my clients' names/brands/ trade‑marks and/or labels." The defendant Company was also required to deliver all lamps, packing and other material lying with the defendant Company. This letter was replied to by the defendant's lawyer on 15th March 1961, as per Exh. P/14. It contained a bare denial of various assertions in the letter under reply and ends up by saying that, in view of the resolution of 6th March, 1961, the letter of the plaintiffs' lawyer was premature. It was explained at the hearing that this was with reference to the seeking of legal advice, which was decided upon in the meeting of 6th March 1961. Some further correspondence followed, but that is not material for the present purposes, and as the defendant Company failed to give the assurances asked for by the plaintiff, the present suit was instituted on 25th August, 1961.

25. As the burden of the main issues was on the defendant, Mr. Zari was the first to advance his argument on behalf of the defendant after Mr. Nurul Arifin had opened the case for the plaintiff. The following contentions were raised by Mr. Zari (i) That the plaintiffs have vitiated their trade‑marks by permitting their use by the defendant ; they cannot, therefore, enforce their right under the trade‑marks ; (ii) That there has been honest concurrent user of the trade marks by the defendant within the meaning of section 10 (2) of the Trade Marks Act, 1940 ; (iii) That the trade‑marks have been determined by abandon ment, acquiescence, estoppel and loss of distinctiveness, and that they are liable to be struck off under section 37 of the Trade Marks Act.

26. Admittedly, plaintiff No. 1 is the registered proprietor and plaintiff No. 2 is the registered user of the trade marks in question. Under section 21 of the Trade Marks Act, the registered proprietor is given the exclusive right to the use of the trade mark in relation to the goods subject to the qualification contained in that section. The main question, therefore, which calls for determination in this case, is whether the plaintiffs have lost wholly or partially their right in the trade‑marks, and whether the defendants have acquired any right to them by honest concurrent user.

27. Before I go on to deal with the respective contentions of the parties on the above questions, I may refer to admission of Mr. Zari, the learned counsel for the defendants, on some important points. These are that the defendant Company sold the lamps manufactured by it only to the plaintiffs in this and the other connected four suits, and Siemens who have not filed any suit, and to Hyesons and to no one else ; that the lamps sold to these parties bore their name and marks and were wrapped in labels bearing their name and marks ; that the lamps and the coverings and the labels bearing the name and marks of one were not delivered to any other party to the agreement. It .was further admitted that the name or any mark of the defendant Company was not put on the lamps or on the coverings and labels. These facts are even otherwise borne out by the terms of the agreement and by the nature of the resolution passed in the Board meeting of 20th February and 6th March 1961. As to the marks on the lamps, their labels and coverings, they are evident from the exhibits which have been produced in this and the connected suits.

28. The whole basis of the defendants' case, as urged before me, is that the defendant Company has used the trade marks in question‑in a manner as to disentitle the plaintiffs from claiming the reliefs which they have in this suit. Mr. Zari relied upon the fact that the defendant Company has been the sole manufacturer of these lamps for all these years in Pakistan ; while the plaintiffs have not done so. He pointed nut that under Clause 7 of the Main Agreement, the duration thereof was up till 1966, and thereafter subject to renewal unless terminated ; that Clause 9 of the Working Agreement allowed the defendants the use of the plaintiffs' formulae of the manufacture of these lamps ; that under Clause 19 of the same agreement Hyesons were given the licence in respect of the Pakistani patents after the termination of the agreement Lastly, he pointed out certain advertisements in the newspapers in Pakistan in pursuance of the resolution of the Board of the Defendant Company, as repro duced in Exh. D/37, and another resolution passed on 13th February 1959 regarding the advertisement of retail and whole sale prices as contained in Exh. D/38 and which were given effect to. The newspapers in which these things are published are Exhs. D/41, D/42, D/43, D/44, D/45 and D/46. The resolution contained in Exh. D/37 reads as follows: "The public are hereby informed that the Electric Lamp Manufacturers of Pakistan Limited are the manufacturers of the following brands of Electric Lamps, only." Then follow the names of the brands of the European Companies and Hyesons. It is then added: "Customers are warned that they should not purchase any brands of lamps, except those mentioned above; under the false impression that the same have been manufactured by us." The second resolution, which is contained in Exh. D/38, is as follows :‑ "The Directors unanimously decided to advertise the retail and wholesale prices for information of the consumers."

29. I may now return to section 21 of the Trade Marks Act, the material portion of which is as follows :‑ "(1) Subject to the provisions of sections 22, 25 and 26, the registration of a 'person in the register as proprietor of a trade mark in respect of any goods ‑shall give to that person the exclusive right to the use of the trade mark in relation to those goods and, without prejudice to the generality of the foregoing provision, that right shall be deemed to be infringed by any person who, not being the proprietor of the trade mark or a registered user thereof using by way of the permitted use, used a mark identical with it or so nearly resembling it as to be likely to deceive or cause confusion, in the course of trade, in relation to any goods in respect of which it is registered, and in such manner as to render the use of the mark likely to be taken either‑ (a) as being used as a trade mark ; or (b) to import a reference to some person having the right either as a proprietor or as registered user to use the trade mark or to goods with which such a person as aforesaid is connected in the course of trade." Considering that the plaintiff No. 1 is the proprietor and the plaintiff No. 2 is the registered user in respect of the goods in question, they have the exclusive right to the use of the trade mark in relation to those goods, and the defendants would be infringing that right if they carry out their threat as contained in the resolution of the 20th February 1961 and as evidenced from the stand taken by them in these suits, unless it can be said that the plaintiffs' marks have either been vitiated or that they have consented to their use by the defendants. Amongst the pro visions mentioned in section 21, Mr. Zari relied upon sub clause (2) (a) of section 22 only, which reads as follows: "(2) The said right to the use of a trade mark shall not be deemed to be infringed by the use of any such mark as afore said by any person, (a) in relation to goods connected in the course of trade with the proprietor or a registered user of the trade mark if, as to those goods or a bulk of which they form part, the proprietor or the registered user conforming to the permitted use has applied the trade mark and has not subsequently removed ox obliterated it, or has at any time expressly or impliedly consented to the use of the trade mark ;" He argued that, upon the admitted facts it should be held that the plaintiffs has consented to the user of the trade marks by the defendants.

30. If any one of these contentions raised by the learned counsel for the defendants is to have any force, it is first to be established that there has been a user by the defendants of the trade marks of the plaintiffs, because if there has been no user, then the question of consent, acquiescence, estoppel or abandon ment does not arise. Let us look at the facts. Under the agreements, referred to above, the parties thereto decided to promote a Company, the main purpose of which was to manu facture lamps and sell them to the parties to the said agreement. The European Companies were to give technical assistance and allow the Company to make use of their formulae. The lamps when manufactured were marked with the names, etc. of the respective parties and those lamps were sold to the parties whose names and labels they bore. The defendant Company did not itself sell the said lamps in the open market. In fact, they did not sell the lamps with the said trade marks and labels even to any of the parties to the agreement except the one whose marks and labels the lamps bore. Neither the lamps nor the labels bore the name of the defendant company. The fact that the agree ments have been terminated is of no consequence for the purposes of this case because the arrangement continued except this that the European Companies, instead of getting 50 per cent of the total products, began to get 30 per cent. The moment the Company passed a resolution, which was at the instance of the majority share‑holders, to enable the Company to sell these lamps in the market, the plaintiffs challenged the validity of their decision and followed it up by these suits. Upon the admitted facts it appears to me that as far as the trade mark was con cerned, the defendant was merely stamping it on the goods and the labels for the use of the plaintiffs. It is the plaintiffs who went out in the market and sold these goods under their names. Where was then the user of the trade marks by the defendant ?

31. I shall now deal with the two resolutions which‑have been reproduced in para. 28 supra and in terms of which certain advertisements were published in newspapers. The first resolution (Exh. D/37) does not bear any date of the meeting in which it was passed, but the advertisements in terms thereof were published in 1955, and, therefore, I take it that the resolution itself was passed about that time. The second resolution (Exh. D/38) regarding the advertisement of retail and wholesale prices was passed on 13th February 1959. As regards the first resolution, the apparent purpose of it is to warn the customers against the purchase of lamps of the brands in question under the false impression that the same had been manufactured by the defendant Company. But I have found it difficult to see as to how the threat of passing off arose and in what manner was it sought to be met by this resolution which came to be later on advertised. It is an admitted position that the lamps and the labels did not bear the name of the defendant Company or any mark, which would show that they were manufactured by it. The customers, therefore, had no means of associating the defendant Company with these lamps. How then were they going to distinguish between the lamps manufactured by the defendant Company and the counterfeit product if any which might have been spuriously brought into the market by some other manufacturer. It, therefore, appears to me that either this resolution was passed under some misapprehension or, and this is more likely, the majority share‑holders had made a vain attempt by this seemingly innocuous resolution to create evidence of their association with the manufacture of these lamps of the said brands. It is important to note that no evidence has been led to show that the customers had associated the said trade marks with the defendant Company or that they had purchased these lamps upon the guarantee that they were manufactured by it. In the absence of such evidence, the advertisement in terms of the aforesaid resolution does not establish the fact that the customers had taken the defendant Company to be the owner or the user of the trade marks and had on that consideration purchased these lamps. As I will presently show, the fact that a person is the actual manufacturer of a commodity does not by itself confer upon him the right in the trade mark if it belongs to another person or is registered in his name. The same consideration would also arise in respect of the advertisements regarding the wholesale and retail prices of the lamps. In my opinion, therefore, these advertisements do not in any manner advance the case of the defendants.

32. I shall now briefly deal with the argument advanced on behalf of the defendant on the ground of alleged acquiescence, estoppel, abandonment and loss of distinctiveness of the marks. This point, in fact, could only arise if it had been found that the defendant was the user of the trade marks. I have, however, come to the contrary conclusion and have found that as far as the trade mark is concerned, it is the plaintiffs who were the users thereof throughout and the function of the defendant was merely to stamp these marks upon the products which were manufactured by them. How does then the question of acquiescence, abandonment or estoppel arise. The plaintiffs never considered the defendant as the user of the trade marks. They merely treated it is the manufacturer of the lamps which were to be delivered to them under their trade marks. The never allowed the defendant to sell these lamps with the trade marks of the plaintiffs to anyone but the person to whom the trade mark belonged or to his assigns. There was thus no infringement of the trade marks by the defendant Company; an that being so, no question of acquiescence or abandonment arises. Even in cases in which there has been an admitted infringement there have to be very strong circumstances to infer acquiescence on the part of the owner of the trade mark. Acquiescence in order to constitute a defence must amount to consent, and the consent can only be inferred if it is shown that the owner in spite of the knowledge of the infringement acted in a marine which was inconsistent with his claim to the retention of the right in the trade mark. Cases regarding acquiescence were considered by the Master of the Rolls (Lord Evershed) in Electriluc Ltd. v. Electrix Ltd. ((1953) 71 R P C 23 at p. 32), where it was held that, as acquiescence involves more than mere delay in commencing proceedings a delay of ten years in regard to the defendants' use of Electrix did not amount to acquiescence which disentitled them to relief. There is no abandonment of the trade mark in the present case because the plaintiffs have been admittedly using it throughout. In order that there may be an abandonment, there has first to be infringement and then such infringement must be numerous and notorious so as to make the mark publici juris. Nothing of the kind has happened in the present case. Likewise, no question of estoppel arises. Considering that an infringement is usually a fraud on the public, estoppel is not to be readily inferred. In the present case, there was no representa tion by the plaintiffs inducing the defendant to believe that it would become entitled to the use of the trade mark in its own right; nor is there any evidence or circumstance to show that the defendant at any time honestly believed that the plaintiffs intended it to become the user of the trade mark in its own right, or that the defendant, in consequence of any representation, altered its contract to its detriment.

33. As to the plea of loss of distinctiveness of the trade mark I have said enough to show that this plea is equally without any substance. The plaintiffs and the other European Companies sold the lamps under their own trade marks, and neither the; lamps nor the coverings and the labels bore the name of the defendant. The trade marks, therefore, remained distinctive, and were not affected by the advertisements referred to above.

34. I shall next consider the question whether the defendant has acquired any right in the trade marks on the ground of manufacturing the lamps, and whether by reason thereof, the plaintiffs have lost their right in those marks: It seems to me to be plain that manufacture simpliciter does not affect the right to the trade mark under which the manufactured goods are sold. A person may order a manufacturer to manufacture goods according to his order and direction, and upon the goods being so manufactured, if the person who ordered the goods, sells them under his own trade mark which he has acquired either by long user or by registration, the manufacturer does not acquire any right in the trade mark. I might with advantage quote from "The Law of Unfair Competition and Trade Marks" by Harry D. Nims (1947 Ed.) Vol. 1, p. 615 :‑ "The question sometimes arises whether a particular trade mark belongs to the manufacturer, the jobber, or the seller of the goods. If the seller has ordered goods made for him bearing a particular mark or brand selected by him, it will ordinarily be deemed his mark; but selection of a trade‑mark does not determine its ownership. The fact that the relation ship of manufacturer and dealer is involved does not alter the rule that priority of use determines ownership of a trade‑mark. If the manufacturer first used the mark on goods to identify the merchandise as his, it does not matter that a dealer suggested the mark to him. If the dealer was the prior user, the trade‑mark belongs to him, even though the manufacturer from whom he bought the goods devised the mark. Contracts between manufacturers and dealers, and their practices in the execution of such contracts are important evidence. In each instance the question is, whose use 'is entitled to protection from infringers. The manufacturer may sell his goods through an agent. A distributor acting as agent for the manufacturer creates good‑will that belongs to the manufacturer. Again a manufacturer who has already used a trade‑mark may appoint a dealer as his exclusive agent, or as his exclusive agent for some particular territory. Unless he assigns his rights to his dealer or abandons the trade‑mark, he continues to own the trade‑mark even though the public knows the dealer but does not know the manufacturer." "If the dealer is the prior user of the trade‑mark and uses it in his own behalf and not as agent for the manufacturer, then the trade‑mark belongs to him. Where a trade‑mark indicates a distributor of merchandise rather than the maker, it is the distributor. who acquires the trade‑mark rights. For the public associates the goods so marked with the distributor and knows not the identity of the maker."

35. In the ease of Defries (J) & Sons Ltd. v. Electric and Ordnance Accessories Co. Ltd. ((1906) 23 R P C 341), a similar question arose for consideration in the High Court of Justice (Chancery Division). This was a passing‑off action and the material facts were these: "The plaintiffs were the American manufacturers of, and their English agents for, the sale of electrical lamps and other accessories. In 1896 an English Syndicate called the 'Stewart Electrical Syndicate Ltd.' began to sell in England lamps made to their order by the American Company, and sold by them under the name 'Stewart Arc Lamps'. In 1903 the Syndicate was wound up, and in 1904 the Receiver sold its good‑will and its rights to the use of the word 'Stewart' in connection with the goods by auction to the defendants, who continued the sale of the goods under that name. The plaintiff having commenced to sell similar goods under the name 'Stewart' sought an injunction to restrain the defendants from selling them under that name; the defendants thereupon counter‑claimed for similar relief. "Held, that the word 'Stewart' as associated with the goods in question was the sole property of the syndicate and its successors the defendants, and the plaintiffs' action was accordingly dismissed, and an injunction granted to restrain the plaintiffs on the defendants' counter‑claim."

36. The next case, which is again directly in point, is that of Aktiebolaget Manus v. Fullwood and Bland Ltd. which is also a decision of the High Court of Justice (Chancery Division) and is reported in (1948) 65 R P C

329. The plaintiffs in that case were a Swedish firm manufacturing milking machines in Sweden which were sold in England under the name "Manus" or "Manus the Gold Medal Milking Machine". One of the components of the machine was the subject of British Letters Patent. The plaintiffs had registered a trade mark in Part B of the Register, the word "Manus" in script being the outstanding feature of the mark. The defend ants were their sole selling agents in England, first by oral agreements and subsequently by written agreements. By an agreement made in 1936, the defendants agreed to purchase the plaintiffs' machines in Sweden and market them in the British Isles at their own expense. The agreement was for five years, subject to certain conditions; and the plaintiffs agreed not to sell to anyone else within that area. After the outbreak of war it became impossible to import the machines into the British Isles, and in June 1940, the defendants, through the plaintiffs' solicitors, were granted a licence to manufacture the milking machines in the U. K. for the remaining term of the plaintiffs' patent and they agreed to mark the machines "Manus". After the patent expired in September 1941, the defendants continued to sell machines manufactured by themselves under the name "Manus". The plaintiffs were unaware of this until their representatives came to England in 1945. In September 1946 the plaintiffs issued a writ claiming relief for passing‑off and infringement of trade‑mark. The defendants contended that the plaintiffs had no good‑will in the U. K. since they had never manufactured there and that the name "Manus" had come to mean machines nude by the defendants. They also alleged that what they had done, had been with the plaintiffs' knowledge, and also that the plaintiffs had been guilty of delay in bringing the action. The defendants counter‑claimed for rectification of the Register on the grounds that the mark was and always had been invalid and non‑distinctive, that the grant of the licence to use the name "Manus" had destroyed any rights the plaintiffs may have had in the trade‑mark; that the name "Manus" then indicated the defendants' machines and that its use by the plaintiffs would cause confusion; that the plaintiffs had abandoned and ceased to use the mark ; and that its continuance on the Register was contrary to section

26. The plaintiffs contended that the non‑user was due to the war, and that the war restrictions constituted a "special circumstance" of the trade within section 26 (3). Herman, J. held: "(i) That the fact that the plaintiffs had never manufactured in this country did not prevent them from acquiring a good will here. (ii) That there had been a substantial user by them of the mark 'Manus' and that such mark had become distinctive of their goods. (iii) That the defendants had wrongfully appropriated the plaintiffs' mark, and could not rely on any results of such misappropriation as a defence to a claim for passing‑off. (iv) That the defendants had not shown that the public were not deceived by their use of the plaintiffs' trade mark, and that the evidence established infringement of such mark. (v) That there had been no acquiescence by the plaintiffs, and that mere delay would not disentitle them to an injunction against passing‑off unless they were barred by the Statute of Limitations. (vi) That the licence agreement was not a licence of the trade mark. (vii) That the non‑user of the mark was due to war time restrictions which were special circumstances in the trade' even if they did not affect everyone in the trade equally. (viii) That the plaintiffs were entitled to injunctions in respect of passing‑off and infringement, and the usual consequential relief, including a certificate of validity although their registra tion was in Part B. (ix) That the counter‑claim should be dismissed. (x) That the injunctions should be stayed pending the appeal." Subsequently the stay was removed as the defendants decided to change the name of their machines.

37. Mr. Zari, the learned Advocate for the defendants relied upon a decision of the house of Lords in the case of Bowden Wire Ltd. v. Bowden Brake Co. Ltd. ((1914) 31 R P C 385). The facts of the case and the findings thereon are succinctly stated in the speech of Lord Dunedin who wrote the leading judgment in the case, and may be conveniently reproduced: "My Lords, the Bowden Wire Ltd., proprietors of certain Patents, by licence of date the 23rd of August 1901, permitted the Bowden Brake Company to make cycle Brakes, and in that manufacture to use the Patents. It is unnecessary to go into the provisions of the licence at length. Suffice it to say that the arrangement was that the Wire, Company alone were to supply the Bowden Wire. The Brake Company were to make the other parts of the brake to wit, the shoes, levers and fittings. The complete article was to be sold by the licensee Company only, and no licences, other than a set of licences already given and specified in the schedule, were to be granted by the licensor Company for cycle brakes to any other person than the licensee Company. `Cycle' was defined to mean cycles of any sort propelled wholly or partially by the rider's physical power, but was not to apply to motor cars or other vehicles propelled wholly by mechanical power. Under this licence the Brake Company admittedly made and sold what I may call for the purpose of distinction push‑cycle brakes from 1901 up to the present time. On the 25th of September 1903, the Wire Company applied to register a certain device representing looped Bowden Wire for `Brakes included in this class for velocipedes and other road vehicles'. The class referred to was class 13 of the Register of Trade Marks Classification. The application was granted on the 16th of January 1904, to date as from the 25th of September 1903. On the 8th of February 1904, the licensor Company granted a licence to the licensee Company to use the Trade Mark so registered on all cycle brakes manufactured and sold by them in virtue of the first recited licence and Agreement. It is conceded that, at least ever since that date, the push‑cycle brakes sold by the licensee Company have been stamped with the said mark. My Lords, in so acting, I think it is free from doubt that the Wire Company really vitiated their own Trade Mark as registered. It was an attempt to assign a Trade Mark in gross, a thing that cannot be done. By registration they affected to tell the public that goods in the class and of the description specified, marked with the registered mark, were their goods ; that is to say, manufactured, or at least put on the market by them. But in reality, with their assent, the mark was, in practice, adhibited to goods which were not put on the market by them, but manufactured by or which were of composite manufacture and put on the market by the Brake Company. Therefore, on objection taken, I am of opinion that the registra tion as it stands must be expunged."

38. Now, the facts of this case were vastly different from the facts of the case before me, and the decision, therefore, is clearly distinguishable. In that case the Bowden Wire Company had allowed a licence to the Brake Company to use the former's trade mark on all cycle Brakes manufactured and sold by the Brake Company. This use had gone on for a long time, and the Brake Company had sold the goods which they manufactured, with the stamp of the said trade mark. It was not merely a case of the manufacturing of brakes. The Brake Company with the assent of the Wire Company affixed the mark on their goods and put them on the market as such. It was upon these facts that it was held that the Wire Company had vitiated their registered trade mark. In the present case, the defendant company has merely manufactured the lamps and that also with the assistance and technical advice of the plaintiffs. They have never put these goods on the market. It is true, they sold them to the plaintiffs but, as I have repeatedly pointed out, the sale was only to those who were the owners of their respective trade marks. The fact that the defendant stamped the goods with the marks of the plaintiffs did not make any difference, because the goods had to be delivered only to the owners of the trade‑marks who in turn put them exclusively on the market. There was thus no user by the defendant of the trade‑marks, the right in which remained preserved with the plaintiffs. No licence had ever been granted to the defendant in respect of the trade‑marks. The licence was merely in respect of the patents. This decision was cited in 'Manus' case, which has been dealt with earlier and was distin guished. This is what the learned Judge said: "Next it is said that the plaintiffs destroyed their rights by the licence granted in June of 1940 and reliance is placed on the well known decision in Bowden Wire Ltd. v. Bowden Brake Co. Ltd. (31 R P C 385). There might be much force in this sugges tion if the licence of June, 1940 had been a licence to the defendants to use the plaintiffs' mark, but in my judgment this was not the object or effect of that document. The defendants merely undertook to stamp the word 'Manus' on every machine and the object of this was to keep the trade name of the plaintiffs alive on the British market and had nothing to do with the trade‑mark, of the existence of which the defendants, if they are to be believed, were at this time ignorant." In the present ease also the defendant was merely assigned the duty of stamping the trade‑marks of the plaintiffs on the goods which were to be delivered to the latter, and to nobody else.

39. In view of my finding that there was no user by the defendant of the trade‑marks, the question of permission for the registration of trade‑marks in favour of the defendants upon the alleged ground of "Honest concurrent user" does not arise. There was no user by the defendant much less honest or con current nor are there any special circumstances in the present case which would entitle the defendant to secure registration. In this view of the matter I find it unnecessary to refer to some of the cases by Mr. Zari which deal with the consequences of user.

40. In view of my conclusions, I shall now record separate findings on the issues in the case. Issues Nos. 3, 4 and 5 were not pressed, and were dropped.

41. Issue No. 1.‑Mr. Zari stated that his' objection upon which this issue was framed was based upon section 40 of the Trade Marks Act. It is, however, plain that section 40 is merely an enabling section and does not bar a suit of the nature which I am trying. The finding on this issue is therefore in the negative.

42. Issue No. 2.‑Mr. Zari conceded that this issue would only arise if this suit was treated as one for breach of the Working Agreement. But that is not so, the suit is clearly in respect of infringement of the trade‑marks.. My finding on this issue is, therefore, in the negative.

43. Issue No. 6.‑Mr. Zari urged that the plaintiff No. 1 is the shareholder of the defendant Company and any dispute between the shareholders relates to the internal management of the company and cannot properly form a subject of enquiry in a suit. This objection is wholly misconceived because the plaintiffs are suing the defendant for infringement of trade marks and not in respect of matters which related properly to the internal management of the Company. My finding on this issue is, there fore, in the affirmative.

44. Issues Nos. 7, 8 8c 9.‑The defendant Company as such was admittedly not a party to the Main Agreement. It is also admitted that both the Main and the Working Agreements were terminated. These facts, however, do not affect the rights of the plaintiffs to claim the reliefs which they have done in this suit. I find accordingly.

45. Issue No. 10.‑It is true that 'the Memorandum of the defendant Company empowers it to sell its product. That power, however, does not entitle it to commit infringement. In fact it was exercising that power by the sale of the lamps to the owners of the trade marks only.

46. Issue No. 11.‑In view of my conclusion recorded earlier, my finding on this issue is in the negative. The defendant company was selling its product only to the owners of the trade marks.

47. Issue No. 12.‑Mr. Zari conceded that in view of the admitted position that the defendant company was selling its product only to the plaintiffs and the other promoters and their assigns, this issue does not arise.

48. Issue No. 13.‑My finding is in the negative.

49. Issue No. 14.‑My finding is in the negative.

50. Issue No. 15.‑My finding is in the negative.

51. Issue No: 16.‑My finding is in the negative.

52. Issue No. 17.‑My finding is in the negative.

53. Issue No. 18.‑The plaintiffs have not been found guilty of laches so as to disentitle them from the reliefs that they have claimed in this suit. Since the resolution was passed on the 20th of February 1961, the plaintiffs called upon the defendant company to give confirmation on matters which are contained in the latter's letter dated 11th March 1961, (Exh. P./13) and which have been reproduced in para.

24. In fact even in the meeting of the 6th of March the majority decision was that the defendant Company will sell bulbs in the market of Messrs Hyesons brands only. My finding on this issue is, therefore, in the negative.

54. Issue No. 19.‑The defendant Company was promoted by the plaintiffs and others for the purpose of manufacturing general service lamps in Pakistan. The parties to the relevant agreement agreed that they will not participate in any other manufacturing enterprise of the said commodity. It was for this reason that the plaintiffs did not manufacture any such lamps in Pakistan. The lamps manufactured by the defendant Company were stamped with the marks of the plaintiffs and other companies anti sold by them in the market. The fact, therefore, that the plaintiffs did not directly manufacture any general service lamps does not affect their claim of reliefs which they have sought to this suit. I find accordingly.

55. Issue No. 20.‑The finding on both the questions in this issue is in the affirmative, but in view of my conclusion as to the consequence from the fact of manufacture by the defendant Company, I hold that it did not affect the rights of the plaintiffs in the trade marks, nor did the defendants acquire any right in them by virtue of the manufacture of the lamps and the sale of them to the plaintiffs and other owners of the trade marks.

56. Issue No. 21.‑My finding on this issue is in the negative, in consequence of which the :punter‑claim of the defendant is liable to be dismissed.

57. Issues Nos. 22 and 23.‑As the result of my findings I decree the plaintiffs' claim as contained in Sub‑pares. (a), (b), (c) of the relief clause 27 of the plaint. The defendant's counterclaim is dismissed. Suit decreed.