PAKISTAN TOBACCO COMPANY LIMITED vs WEST END TOBACCO COMPANY

' This appeal has arisen out of a suit brought by the appellant, Pakistan Tobacco Company Limited, against the respondent, West End Tobacco Company. Dispute involved in the suit is with regard to the sale of cigarettes by the two Companies. The appellant is selling cigarettes under the trade mark CRAVEN "A", which is registered one. On the other hand, the respondent is selling cigarettes under the trade mark CARVAN. Feeling aggrieved by the sale of cigarettes by the respondent as aforesaid, the appellant brought the suit praying for the following reliefs:- "(a) A permanent injunction restraining the Defendant, its servants, agents, dealers salesmen, from infringing the Plaintiff's registered trade mark No,9925 and from selling, offering for sale or otherwise passing off cigarettes not of the Plaintiffs manufacture by the use of the CARVAN packet, the get up of the Plaintiffs CRAVEN 'A' packet the feature CARVAN or any other feature or trade mark so closely resembling the plaintiffs said registered trade mark No,9925 or the plaintiffs CRAVEN 'A' packet as to be likely to deceive or cause confusion.

(b) An order that the defendant do deliver up on oath for destruction all its stocks of the CARVAN packets and all advertising materials, printing blocks, dyes, plates and other implements, devices and materials bearing the features of the CARVAN packet which are in the possession , power or control of the defendant.

(c) An order for an account to be rendered by the defendant of the profits wrongfully made by it or an enquiry as to damages at the election of the plaintiff and for an order for payment to the Plaintiff of all sums of money found due on taking of such accounts or enquiry as to damages.

(d) Costs of the suit

(e) Such further or other relief or reliefs as may seem proper to this Hon'ble Court in the circumstances of this case."

' The suit was dismissed by the District Judge, Lahore. Hence this appeal.

2. The appellant's contention was that the packets in which the respondent was selling the cigarettes resembled with the packets in which the appellant was doing so and thus the respondent was likely to deceive the public. It was also maintained by the appellant that the said act of the respondent amounted to infringement of the rights of the appellant under Trade Marks Act, 1940. Their plea did not find favour with the learned District Judge as he felt that there was a sharp distinction between the two packets. In this connection, he remarked as follows:- "For instance in the red oval appearing on the packet of cigarettes manufactured by the plaintiff letter "A" is mentioned under letters CRAVEN whereas in the packet of the defendant word CARVAN is distinctively mentioned having a star mark beneath it. Furthermore on the packet of the plaintiff the words "FILTER" is mentioned which does not so appear on the packet of the defendant. On the Carvan cigarettes packets there are palm trees with camels which do not appear on the plaintiff's packet . There is a great difference in the price of the two cigarettes. Ten Cigarettes of CRAVEN "A" cost Rs,1.60 whereas the price of ten Cigarettes of CARVAN is only Rs,0.20."

3. Besides the distinctions pointed out by the learned District Judge I have noticed that at the back of the packet of the appellant there is a lengthy writing in English with a trade mark on the top (the head of a cat) which is not there on the packet of the respondent. On the packet of the respondent there are also stars on the two sides which are not there in the packet of the appellant. Those who know English can very well make difference between the two packets and even those who are illiterate can do so inasmuch as on the packet of the respondent there are palm trees, sand dunes and camels which are not seen on the packet of the appellant. No one can possibly overlook the aforesaid distinctive features. I, therefore, agree with the learned District Judge that there is much difference between the two packets and no section of the public is likely to be a duped by the packet used by the respondent. Despite all this, if the appellant wants to be more cautious it may introduce such changes in writing, etc., on its packet, as it may deem fit, so as to make the differences still more conspicuous. Needless to say that such changes are generally made by the business community with a view to making their products more attractive even, when they are not confronted with difficulties like those complained of by the appellant. One of the instances in point is that of the Lux soap. The manufacturers of this soap frequently change the size of the cake and also use new packing material bearing fresh writings, etc., thereon.

4. In view of the above discussion I see no good reason to interfere with the judgment and decree passed by the learned District Judge and dismiss this appeal. Since the respondent has not contested the appeal, I make no order as to costs.