MUHAMMAD RAFIQ Versus MUHAMMAD ALI

The respondent and his counsel are called absent. Today this appeal is fixed for regular hearing as well as hearing of C . M. A . No. 185 of 1986, as it was due to joint request of the learned counsel that this matter was fixed for regular hearing today. But I have heard Mr. Ashraf Ayub, the learned counsel for the appellants only as the respondent and his counsel have remained absent.

The facts of the case are that the appellant has shop in Lea Market where he is selling tea in packets using a registered trade mark, namely "SHAHBAZ". The said trade mark which is in Urdu language was got registered by him on 12‑2‑1969 under Registration No.50986. However, the respondent who is also doing similar business and in the same locality started using similar trade mark as that of the appellant on his tea packets by using the word "Shahbaz". The contention of the appellant is that the latter word when written in Urdu is so similar to the former that it is bound to mislead the public. There is also a close similarity between the pattern and the design used in the two trade marks. Further, according to the learned counsel the trade mark of the appellant is registered while that of the respondent is not and the business started by the appellant was also earlier in time.

2. The appellant under such circumstances, filed a suit before the 1st Additional District Judge (South) Karachi, together with an application under Order XXXIX, Rules 1 and 2, C.P. C. for grant of interim injunction but the learned Additional District Judge vide order, dated 26‑1‑1986, dismissed the stay application. Being aggrieved by the said order the appellant has now filed this appeal.

3. I have heard Mr. Ashraf Ayub, as the respondent and his counsel. Mr. Umer Farooq, chose to remain absent although the parties had taken date of their own choice for hearing of this appeal. Mr. Ayub showed me the two trade marks which are already on record of this case. This similarity between the two is so clearly pronounced that it is difficult to distinguish one from the other.

4. Turning to the impugned order, I am at a loss to understand as to what are the reasons which made the learned Additional District Judge to conclude that the appellant had failed to make out's case for interim stay.

5. The design and the pattern and the colour of the two is so similar that it leaves hardly any scope for doubt that the public would be misled. The only reason stated by the learned Additional District Judge is that the picture of the bird on the sign board put up on the shop by the respondent is not similar. The relevance of that to the case put forth by the appellant is not understandable as the trade mark being used by the appellant clearly seems to have been infringed by the respondent.

6. 1 have, therefore, no doubt on my mind that the appellant has been able to establish a prima facie case for grant of injunction in his favour.

7. For the aforesaid reasons, this appeal is allowed and the order passed by the learned Additional District Judge (South) Karachi, dated 26‑1‑1986, is set aside. The respondent will, therefore, refrain from using the trade marks 'SHAHBAZ" on his tea packets, using the same pattern, design and colour, during the pendency of the suit proceedings before the learned Additional District Judge, which may now be disposed of as expediciously as possible.

8. There will be no order as to costs.

A . A . Appeal allowed.