P L D 1960 (W (PLP)

Muzaffar Hassan for Respondent. Dates of hearing : 1st and 4th April, 1960. This is an appeal against an order of the Registrar of Trade Marks by which he has allowed registration of a trade mark in favour of the respondents in respect of "Aluminium Household and Kitchen Utensils". The main feature of the trade mark is the device of a cycle. The registration had been strenuously opposed by the appellants Messrs Lallubhai Amichand, on the ground that the proposed trade mark closely resembled their registered trade mark No. 5970 in respect of the same class of goods. The appellant's trade mark was registered` on 25‑7‑42 while the respondents, the Punjab Aluminium Factory, applied for the first time for registration on 13‑7‑

49. In the first instance the application was refused by the Registrar. The respondents. then applied for the rectification of the register under section 37 of the Trade Marks Act by alleging that the appellants Lallubhai Amichand had not used the trade mark in Pakistan for 5 years. The Registrar did not agree to remove the appellant's trade mark from the register although he observed that there was an honest and concurrent user of the trade mark by the respondents. The appellants appealed against that decision of the Registrar seeking expunction of remarks regarding the honest and concurrent user of the respondents, but the appeal was dismissed by my learned brother Qadeeruddin Ahmad, J. on 17‑3‑

58. The respondents again pressed their original application for registration of their trade mark which was allowed, and it is against this final order that the present appeal is directed.

2. Lengthy arguments have been addressed by the learned counsel on both sides. Dr. Mahmood, appearing for the appel lants, has sought to show that there has been no honest and concurrent user on the part of the applicant‑respondents in this case and that they have dishonestly copied the registered trade mark of the appellants. He has criticised the entire evidence adduced by the respondents. The learned counsel for the respondents, namely Mr. Muzaffar Hassan, has similarly taken great pains in trying to prove that there has been honest and concurrent user on the part of the respondent. It seems to me, however, that the appeal can more appropriately be decided on somewhat different considerations.

3. It is common ground between the parties that the appellants are now functioning in India and that since Independence their goods have not been imported into Pakistan for various reasons. It cannot also be disputed that at least since 1949, i.e., from the date of the application, the respondents have been using the trade mark and have built up a considerable business in the manufacture of these goods.

4. Now subsection (2) of section 10 of the Trade Marks Act clearly confers discretion on the Registrar to allow registration by more than one proprietor of trade marks which are identical or nearly resemble each other in case of honest concurrent user or "of other special circumstances" which, in the opinion of the Registrar, make it proper so to do. Thus it is not only in the case of established honest and concurrent user that subsequent registration of an identical trade mark is permitted but also in cases where other special circumstances may exist. No authoritative interpretation of the phrase "other special circumstances" seems to be available, nor does it appear desirable or even practicable to. attempt any precise definition or exhaustive enumeration of circumstances and factors which may appropriately fall within its ambit. But the phrase is clearly wide enough to include diverse' considerations relevant to the balanced development of industry, the relative degree of convenience or inconvenience to they contesting parties in the event of registration or its refusal and finally the interest of the consumer or the general public.

5. In the present case the holders of the registered trade mark have migrated to India and their goods are no longer available for sale or consumption in this country and in the vacuum so created a national firm of manufacturers has built up' a sizeable business by using the trade mark in question over the last eleven years. These are circumstances which, in my view, should be regarded as "special circumstances" within the meaning of section 10 (2) of the Trade Marks Act. It is true that at some future date it may become possible for the previous holders of the, registered trade mark to make their goods available in the national market in Pakistan, but that future contingency alone cannot outweigh the combined effect of the special circumstance that have been shown to exist in favour of the respondent -applicants. Refusal of registration would not have benefited the consumer nor even the previous registered holders of the trade mark, but would certainly have interfered with the growth of a useful local industry. I consider therefore that in the peculiar circumstances of the present case the registration has been rightly allowed and no case is made out for interference with the discretion exercised by the Registrar of Trade Marks. The appeal is therefore dismissed, but there will be no order as to costs. K. B. A. Appeal dismissed.