1984 PLP 1024 (SCMR)

M. S. H. QURAISHI, J.‑This petition concerns the question of grant of an interim injunction in the petitioner's suit in the matter of trade mark. The petitioner, which is a firm dealing in arms and ammunition, claims proprietary right in trade mark "ARMINIUS", registered in its favour on 6‑8‑1966 and since renewed for fifteen years from 6‑8‑1973, and thus the exclusive right to its user. It is to be noted that "ARMINIUS" is a trade mark of a West German Firm, Messrs Hermann Weihrauch Ohg engaged in manufacturing arms and ammunition in that trade mark since 1951. Respondent No. 1, which is also a trader in arms and ammunition, imported 105 revolvers bearing trade mark "ARMINIUS" which were in custody of the Customs authorities when the petitioner filed the suit for permanent injunction for restraining respondent No. 1 from the trade mark "ARMINIUS" and the Collector of Customs, respondent No. 2, from making delivery of the aforesaid imported revolvers to respondent No.

1. In the suit, the petitioner also moved an Application for grant of a temporary injunction but the application was rejected by the trial Court on 16‑11‑1983 on the ground that the petitioner had not established a prima facie case. The petitioner then filed F. A. O. 196 of 1983 in the High Court. In that appeal, too, it moved a miscellaneous application for an interim relief but the same was dismissed on 21‑11‑1983. The High Court came to the view that the documentary evidence produced before the trial Court showed that arms bearing trade mark "ARMINIUS" had been imported in Pakistan by different dealers prior to 1966 when the trade mark was registered in the name of the petitioner. For this reason, and relying on Anwar v. The Golden Pen Manufacturing Co. (1), to the effect that under section 25 of the Trade Marks Act 1940, the prior user has preference over owners of registered trade mark of a later date, the High Court agreed with the trial Court that the petitioner had no prima facie case for the grant of a temporary injunction. Another contention of the petitioner based on the provisions of section 15(e) of the Customs Act, 1969, was also repelled. It was held that according to sub‑clause (i) of clause (e), the prohibition contained in clause (e) would not apply if the name or trade mark is, as to every application thereof, accompanied by a definite indication of the goods having been made or produced in a place outside Pakistan.

2. Before us, no reference to section 15(e) of the Customs Act was made because the goods have since been released by the Customs authorities and partly sold in the market. The petitioner, however, for the grant of temporary injunction relied, apart from the document of registration of the trade mark and its renewal, on a copy of letter dated 29‑9‑1966 from the said German Firm to the following effect "I herewith certify that I have granted the exclusive selling rights in Pakistan for the. manufactured by me, to Messrs Ghulam Mohamed Dossul & Co., Parr Street, Karachi. Only Messrs, Dossul are authorized to import and distribute ARMINIUS revolvers." and letter dated 16‑9‑1969 giving the petitioner right "to register the trade mark `ARMINIUS' in Pakistan". It was urged that the petitioner having acquired proprietary right in the trade mark "ARMINIUS" it was entitled to an injunction. In regard to section 25 of the Trade Marks Act it was urged that the section could protect only the prior use by any person or his predecessor and that respondent No. 1 having imported the revolvers for the first time in 1975, i.e., well after the registration of the trade mark in favour of the petitioner, could not claim benefit of that section. In support of the plea for grant of temporary injunction, reliance was also placed upon Unani Dawakhana v. Hamdard Dawakhana (A I R 1930 Lah. 999), Biddle Sawyer & Co., Ltd. v. Meera Sahib & Bros. (1937 M W N 271), Firm Hiranand v. Firm Sardar Meharsingh (A I R 1938 Sind 38), Rexona Proprietary Ltd. v. Majid Soap Works (P L D 1956 Sind 1) and Abdul Jabar v. Ahmad Jan (P L D 1973 Kar. 289), wherein the principles generally applicable to the grant of relief in trade mark cases have been dealt with. In the Madras case of Biddle Sawyer & Co., upon which reliance was particularly placed, it was held that a manufacturer of goods bearing a particular mark or name, who merely manufactures them in England for a trader in India and sends them on to the trader and does not himself sell the goods in India, cannot be said to acquire any right at all in India in the trade mark or trade name and that the trader who has sole rights to the use of the particular mark in India, gets proprietary rights in the trade mark by use and is entitled to sue for injunction against the person infringing the same.

3. On the other hand, it was submitted on behalf of the respondent that the West German Firm manufacturing "ARMINIUS" revolvers had never authorised the petitioner firm to manufacture "ARMINIUS" revolvers and that they being the predecessor of respondent No. 1 holding a right to the use of the trade mark from a prior date could not be prevented from selling their goods in Pakistan.

4. Both sides wanted to produce some new documents but since we, are examining the correctness of the decision of the Courts below on the basis of the documents which had been produced before them, it will not be proper to advert to any new document. The documents on record do not fully establish that the German Firm, the original owner of the trade mark, had abandoned all its rights in the trade mark in favour of the petitioner in Pakistan. The letter from the West German Firm of 29‑9‑1966, no doubt, confers on the petitioner the exclusive selling right in Pakistan for "ARMINIUS" revolvers but it is highly doubtful if the remedy for a breach of the same on the part of the German Firm would entitle the petitioner to the kind of relief sought. The other letter dated 16‑9‑1969 permitted the petitioner to register the trade mar "ARMINIUS" in Pakistan, although by that date, the said trade mark had already been registered. It is also yet to be established if the petitioner had acquired from the owners of that trade mark only the right to import and distribute their revolvers or also to manufacture in Pakistan revolvers bearing that trade mark and if so whether it was effective from the date of the registration of the trade mark, or at least from the date when respon dent No. 1 imported arms bearing that trade mark.

5. In the circumstance we are not inclined to interfere with the impugned order of the High Court. The petition is dismissed. M. Z. M. Petition dismissed.