WESTERN BRAND TEA, KARACHI Versus TAPAL TEA (PVT) LIMITED, LAHORE

MUNAWAR AHMED MIRZA, J. --Civil Petitions Nos.407-L and 408-L of 1998 are directed against common judgment dated 2-3-1998 passed in F.A.Os. Nos. 280 and 281 of 1997.

2. Relevant facts briefly mentioned are, that on 21-3-1997 M/s. Tapal Danedar Tea filed Suit No.14 of 1997 before Additional District Judge, Lahore, whereas M/s. Brooke Bond Pakistan Limited separately filed Suit No. 15 of 1997 on identical grounds against M/s. Western Brand Tea before Additional District Judge, Lahore, praying for restraining M/s. Western Brand Tea manufacturer from. infringement of its 'Trade Mark', 'property mark' and distribution of goods' with 'Trade Mark design' deceptively similar to that of 'Trade Mark and Property mark' of M/s. Tapal Tea Private Limited. It was alleged that M/s. Western Brand Tea had recently started manufacturing and selling different brand of tea under the name of 'Western Brand Danedar Tea' by using wrapper and label which has close similarity to Tapal Danedar Tea Limited's wrappers/labels. Besides same have been packed in the packet of identical colour 'with' similar out-words scheme and designs. Petitioner (herein) through its manager filed written statements on 25-11-1997 repudiating the claim in suits. It was asserted that, they were carrying business exclusively within limits of District Rahim Yar Khan and have no distribution Centre or market at Lahore. It was averred that "trade mark' of Western Brand Tea had (Kenya Mix) tea which had its independent registered trade mark for specified area. Petitioner also pleaded the respondent (herein) were causing damage to its well-recognized good reputation.

3. It may be seen that, in these matters on 25-11-1997 counsel for petitioner (herein) i.e. Western Brand Tea, gave a statement before the trial Court that neither trade mark nor any other right of respondents were infringed and absolutely no violation of respondent's trade mark rights or business was being caused by the petitioner. However, after hearing the arguments, learned Additional District Judge, Lahore, decreed the suits in the following terms:--

4. M/s Western Brand Tea Manufacturer files F.A.Os Nos. 280 and 281 of 1997 before Lahore High Court (Bahawalpur Bench) challenging above decision. These appeals were dismissed vide judgment dated 2-3-1998. Operative portion whereof is reproduced below:--

"9. Under section 96(3) of C.P.C., no appeal lies against the consent order. From the statement recorded by learned counsel fort the appellant, before the learned Additional District Judge, it is` evident, that the appellant had undertaken, in so many words, that it would neither violate the trade mark/wrapper of the respondent nor would indulge in passing off the products with the similar trade mark and wrappers. In view of this undertaking and admissions the learned Additional District Judge, decreed the suit. The decree for all intents and purposes was passed, in view. of the admission and undertaking given, which could not be challenged in appeal.

10. As regard the apprehension, that the appellants have been deprived of their production, the same is ill-founded. No such direction has been given to restrain the appellant from producing its products. The restraint is only, to the extent, that they should not sell their products, with similar trade mark and wrappers, which may not mislead the customers. It is not denied, that the trade mark and wrappers of respondents, with a particular design, wording and colour scheme has been duly registered. This being so, the appellant cannot be allowed, in law, to sell their products with a wrapper or trade mark, similar to that of respondents, as this would positively mislead the customers. Even otherwise, it is evident from two trade marks that there is great resemblance with each other and, therefore, possibility of misleading the customers, cannot be ruled out. On account of the prior registration of trade mark of wrapper, the respondent has a vested right to restrain the appellant, from selling its products, with the similar trade mark/wrappers, having similar designed, wording and colour scheme. However, appellants will not be denied of their rights, to manufacture products and sell the same with different trade mark, wrapper and colour scheme. In these circumstances, it was necessary, that the suit of respondent be decreed, to avoid future inconvenience and losses, to the respondent."

5. M/s. Western Brand Tea Manufacturer has now assailed above decisions through Civil Petitions Nos.407-L and 408-L of 1998.

6. Mr. Arif Chaudhry, Advocate Supreme Court, vehemently contended that counsel for the petitioner did not make any admission before trial Court and had merely reiterated its stand specifically put forth in the written statement. Therefore, according to him, conclusion drawn by trial Court as well as High Court were not justified. It was canvassed that admission had to be in categoric unambiguous, unqualified terms and not merely explanatory. He, therefore, stressed that impugned decree suffers from material illegally and is not sustainable. To supplement his submission reliance was placed on observations in cases (i) Mercantile Five and General Insurance Company of Pakistan v. Imam and Imam Limited 1989 CLC Karachi 2117 and Muhammad Zahoor v. Lal Muhammad 1988 SCMR 322.

7. We have given our anxious thoughts to the arguments advanced by learned counsel for petitioner and all other aspects of the case. It is cardinal principle of law and fair commercial trading, that deceptive measures should not be adopted to adversely affect goodwill and recognition earned by other organizations in trading specific commodity. Bare visual look on the wrappers wherein the petitioner (herein) packed their tea, reflects complete resemblance providing similarity of design, scheme and colour which can certainly affect the product of respondents Tapal Danedar Tea. The illiterate , customers with particularity can be conveniently misled on looking at wrappers. Both the Courts have appropriately considered relevant legal and factual aspects, therefore, in our opinion findings arrived at in the impugned judgment do not suffer from any material defect or legal infirmity. Besides: petitions do not involve any important point of law of public importance which may require consideration. Additionally discretionary Constitutional jurisdiction cannot be used to perpetuate deception.

For the above reasons we do not find any substance in these petitions, which are consequently dismissed and leave refused.

Q.M.H./M.A.K./W-6/S Petitions dismissed.