MAZHAR INDUSTRIES (PRIVATE) LTD. Versus DEPUTY REGISTRAR OF TRADE MARKS

1. This appeal has been preferred under Section 76 of the Trade Marks Act, 1940 (hereinafter referred to as the Act) against the decision of the Deputy Registrar of Trade Marks, dismissing the application filed by the appellants.

2. The appellants Mazhar Industries (Private) Ltd., Karachi filed application No. 86591 in Class‑32 dated C‑6‑1985 for registration of Trade Mark "FLAIR" in respect of soft Drinks/Non‑Alcoholic beverages.

3. The Examiner of Trade Marks, by his letter dated 6‑1‑1986 called upon the appellants to show cause why the application should not be refused registration on the ground that the mark was objectionable under S. 6(1.)(d) of the Act. The appellants submitted a reply on 18‑3‑1986 to the afore‑mentioned show cause whereupon after hearing the appellants' counsel, the Deputy Registrar dismissed the application and thus refused the registration of the mark on the ground that the mark has direct reference to the quality of goods.

4. I have heard Mr. Safm Ghulam Hussain, the learned counsel for the appellants. No one has appeared on behalf of the respondent.

5. In order to appreciate the contentions of the learned counsel for appellants, it is advantageous to reproduce section 6(1)(d) of the Act which reads as under:‑

6. "6(1) A trade mark shall not be registered unless it contains or consists of at least one of the following essential particulars, namely:‑

(a) The name of the company, individual, or firm, represented in a special or particular manner;

(b) the signature of the applicant for registration or some predecessor in his business;

(c) one or more invented words;

(d) one or more words having no direct reference to the character or quality of the good, and not being according to its ordinary signification, a geographical name or surname or the name of a sect, caste, or tribe in Pakistan:"

7. The Deputy Registrar observed that "the word `FLAIR' is the dominant feature of the mark which requires consideration. "In ordinary parlance the word `FLAIR' would convey to the average man that soft drinks are fragrant and because of order and taste, they have a flair of hospitality and active liking." The word `FLAIR' being directly descriptive of the goods and laudatory is objectionable under Section 6(1)(d) of the Trade Marks Act, 1940.

8. Mr. Salim has submitted that the word `FLAIR' has no direct reference to the goods. At the most it can have a reference to a person but not to goods.

9. The contention of the learned counsel for the‑appellants is that it has no reference whatsoever to character and quality of the goods or products to which the mark is intended to apply i.e. soft drinks/non‑alcoholic beverages.

10. In the case of M/s. Bubble Up Company Inc. v. M/s. 6‑Up U.S.A. (PLD 1975 Karachi 592) the word `Up' in Bubble Up was objected to for the reasons that it had reference to the character and quality of goods. Mr. Tufail Ali A Rehman, J. dispelled the objection with the following observation:‑

11. "It is true, of course, that the moment the word was thought of in combination with some other word such as ?Bubble? the image of a liquid intended for drink and contained in a transparent vessel through which the bubbles would be seen coming up to the surface was conjured up But this was not the result of the word by itself but only in combination with some such suitable word as I have mentioned and such an association of ideas is bound up also with a large number of other prepositions and I did not think it correct to say that that, on that account, the word by itself conveyed any such meaning as it claimed."

12. Again at Page 586, the learned single Judge held:‑

13. "Assuming, however, in favour of the appellants that the dictionaries do give this meaning, does that really conclude the matter? It is not, I think the meaning of a word which would occur only to the very erudite but the meaning which would occur to the ordinary person and I think that the a means the ordinary person in Pakistan would understand. I venture to think that in this country at least, and probably even in others where the English Language is commonly used this would not be the sense in which the word is understood. The purpose of the Legislature appears to me to be to forbid the use in a trade mark of a word which is descriptive of the word must therefore convey a description to those who, commonly see it or hear it and not only to the scholarly."

14. In the case of Hindustan Petroleum Corporation Ltd. v, the Registrar of Trade Marks (IPLR Vol.6.No.1 April 1981 at page 1) the facts of the case were that the appellants applied to Registrar of Trade Marks consisting of the word "SEETUL" in class 4 in respect of specification of goods which after an amendment reads as "Lubricants and Lubricant Specialities". The Deputy, Registrar after hearing refused the registration on the grounds that the word "SEETAL" which meant "Cool", "Chilly", "Cooling" etc. had a descriptive significance in respect of the concerned goods namely "Lubricants and Lubricant Specialities". From the decision of the Deputy Registrar, the appellants appealed to the Bombay High Court contending that "SEETAL" was not descriptive in respect of the concerned goods. Mr. Pardse, J. held that the word must have direct reference to the character or quality, of the goods required by the provisions of subsection (1)(d) of Section 6 of the Act and not a remote or far fetched reference.

15. In M/s.Glaxo Laboratories Ltd. v. The Registrar of Trade Maria; Government of Pakistan (PLD 1985 Karachi 630) the Registrar refused tire appellants application for registration of Trade Mark on the ground that Trade Mark "VITAMILK" was descriptive under Section 6(1)(d) of the Act, Mr. Nasir Aslam Zahid, J. held that "the Trade Mark "VITAMILK" appears to be a newly-coined word and although this mark may have some suggestive reference to the character or quality of the goods of the appellants, it has not direct reference may make the trade mark descriptive of the goods."

16. In Parke Davis & Company v. The Deputy Registrar of Trade Mark, (1984 CLC 2623), the facts were that the appellants made application for 0? registration of Trade mark "BARDASE". The Deputy Registrar of 'Trade Mark refused the registration on the ground that "BARSAEE" was too close to the word "BARDASE" and it has direct reference to the character and quality goods. Mr. KA. Ghani, J. (as he then was) held:‑

17. "I have considered these arguments of the learned counsel in the light of the decisions laid down in the above‑referred cases and find that the word `Bardase' can neither be described as having any similarity with the word `Bardash' nor can it be said to have any descriptive meaning of the appellants' products so as to violate section 6(1)(d) of the Trade Marks Act. I also agree with the learned counsel that the word. `Bardase' is an invented word having no meaning".

18. In Hindustan Milk Food Manufacturers Ltd. v. The Registrar of Tade Marks (MA. 47 of 1978 decided on 19‑11‑1984) the appellants made an application to the Registrar of Trade Marks for the registration of a trade mark consisting of the word "Boost" in Class 5 in respect of "malted food for children and invalids". The Registrar refused the registration on the ground that "Boost" is a descriptive word in respect of the goods in Class 5. The appellants appealed to the Court, Mr. Muhammad Zahoorul Haq, J. (as he then was) held that the word "Boost" is not descriptive of the quality of the goods of the appellants but only shows the result that would be achieved by the consumer after eating the product and therefore the word is actually relatable to the consumer and not to the product itself.

19. In Muller Brewing Company v. The Registrar of Trade Marks (MA. 62 of 1978 decided on 19‑12‑1983) the appellants applied to the Registrar of Trade Marks to register a trade mark consisting of "HIGHLIFE" in Class 32 in respect of "Beer"", ale and porter, mineral and aerated water and other non‑alcoholic drinks, syrups and other preparations for making beverages. The. Deputy Registrar after hearing refused the registration on the ground that it is purely laudatory and descriptive. From the decision of the Deputy Registrar of Trade Marks, the appellants appealed to this Court. Mr. Zahoorul Haq, J. held that the goods in question were non‑alcoholic and they are liquids like beer, ale, porter. The word "HIGHLIFE" does not appear to me to be having any direct reference to the character or quality of the goods. The style of living of upper class in a society does not appear to be having a direct reference to the non‑alcoholic liquids which are involved in the class". It was further observed that the word "HIGHLIFE" does not have any direct reference to the description of the goods in question as no one can come to the conclusion that as soon as a person bears "HIGHLIFE" he will start thinking of beer, ale or syrup.

20. The Deputy Registrar of Trade Marks relied upon dictionary meaning of word "FLAIR" as sense of smell, to give off an order, be fragrant, relying too much on taste, a flair of hospitality, an active liking. In New Webster's Dictionary at page 370‑‑Smell, scent, fragrant, natural skill, innate talent; knock. Chambers Concise Usage Dictionary page 187‑natural ability or cleverness for (doing) something; Readers Digest Faming Word Find at page 308. Thelmn and flagrant. Use the Right Word Flair. Mr. Salim invited my attention to the Trade Marks Journal (No. 420 dated 1‑1‑1986 page 318) where the word "FLAIR" was adversed before acceptance "83105‑Bleaching preparations and other substances for laundry use, cleaning, polishing, scouring and abrasive preparations, soaps, perfumery, essential oils, cosmetics, hair lotion, shampoo, dentifrices, tooth powder & toothpaste, detergents. NATIONAL DETERGENTS LIMITED, a Pakistan No., 2nd Floor, Sattar Chambers, West Wharf Road, Karachi; Manufacturers and Merchants‑‑27th May, 1984.

21. Trade Marks Journal No. 420 (1‑2‑1986 p. 374) "83104. Phenyle, insecticides, disinfectants, pesticides and fungicides being goods in class‑5. NATIONAL DETERGENTS LIMITED, a Pakistani Co., 2nd Floor, Sattar Chambers, West Wharf Road, Karachi: Manufacturers and Merchants.‑‑27th May, 1984.

22. The goods in question are soft drinks/non‑alcoholic and they are liquids, like Bubble Up, 7 Up. The word "FLAIR" does not appear to me to be having aryl direct reference to the character or quality of the goods. The natural aptitude or artistry of a person does not appear to be having direct reference to the soft drinks/non‑alcoholic liquids which are involved in this case.

23. Consequently I am of the view that the word "FLAIR" should have been allowed to be registered as a trade mark by the respondent for the product soft drinks/non‑alcoholic drinks.

24. In the result, the appeal succeeds and the Registrar is directed to proceed with the appellants' application No. 86591 in Class 32 in accordance with law. In the circumstances of the case, the parties shall bear their own costs.

25. H.B.T./M‑746/L ????????

26. Appeal accepted.