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Suit No.541 of 1980, decided on 10th January, 1984.

---S.10--Civil Procedure Code (V of 1908), O.XXXIX, rr. 1 & 2 and S.151--Injunction claimed by plaintiff to restrain defendant to use similar trade mark regarding liquid petroleum gas in cylinders--Application was resisted on ground of delay of six years in filing suit for injunction--Correspondence between parties showing that as soon as plaintiffs becoming aware of use of mark they protested against it- Several meetings taking place to resolve issue and at one stage defendants showing willingness to discontinue use of mark if compensated properly but dispute could not be settled amicably--Held, no delay in instituting suit and injunction could not be refused on this ground.

---S.10--Civil Procedure Code (V of 1908), O.XXXIX, rr.l & 2--Trade mark--"Burshane" and "Buprane"--Use of Trade Mark "Buprane" by defendants, held, was likely to cause deception and confusion in mind of unweary purchaser because of phonetic resemblance in first syllable of registered trade mark of the plaintiff and offending mark used by defendant--Temporary injunction granted.

Abdul Waheed v. Abdul Rahim P L D 1974 S C 104 rel.

E. A . Nomani for Plaintiffs.

Sher Ali for Defendants.

This application under Order XXXIX, rules 1 and 2 read with section 151, C . P. C . for grant of a temporary injunction is filed by the Plaintiff with a prayer to restrain the defendants from manufacturing, selling, offering for sale, advertising or otherwise using on its product, liquid petroleum gas in cylinders, with the mark "Buprane" with a device of flame thereon, on the ground that the use of the above mark by the defendants amounts to infringement of plaintiff's registered trade mark "Burshane" with devices of two flames. This application for grant of temporary interim injunction during pendency of suit is filed alongwith the suit for permanent injunction in which a similar prayer for grant of a permanent injunction against the defendants is made.

The plaintiff No.1 in the suit is the registered proprietor whereas plaintiff No.2 is the registered user of the trade mark "Burshane" which consists of the words "Burshane" with devices of two flames. This mark is registered under Nos. 23867, 23868, 23869, 43541, 43785 and 46180 in classes 1,4 and 11. The plaintiffs claim to be using the above mark on their product liquid petroleum gas which they offer for sale in cylinders in Pakistan since 1966. It is alleged by the plaintiffs that on account of the high standard of Plaintiffs product and extensive advertisement of the trade mark "Burshane" it has acquired distinctiveness and is very popular among the general public. It is alleged that in or about June, 1979 the Plaintiffs came to know that the defendants are offering for sale liquid petroleum gas in cylinders under the mark "Buprane" with device of one flame, when they came across an advertisement published by the defendants in daily issue of "Jung" dated 10th June, 1979. It is claimed that the use of the mark "Buprane" with a device of flame thereon by the defendants on their product amounts to infringement of the plaintiffs registered trade mark "Burshane" with device of two flames. It is also claimed that as the goods of the plaintiffs and the defendants are of the same class and description it is likely to cause deception and confusion in the mind of a unweary purchaser who may be induced to purchase the goods of defendant as that of 'plaintiffs because of similarity of the two marks. The Plaintiff has produced the offending advertisement which appeared in the newspaper "Jung" alongwith their own advertisement and the two gas cylinders shown in these advertisement are identical besides other similarities. The plaintiffs have also produced the printed copy of literature issued by the defendants relating to "Buprane" liquid petroleum gas alongwith their own literature on "Burshane" which also shows that the colour scheme and get up adopted by the defendants is very much similar to the plaintiffs printed material. I heard the injunction application on 2-12-1980 at length and reserved order thereon. However, on 4-12-1980 Mr.Sher. Ali the learned counsel for the defendant presented an application under section 151, C.P. C. in Chambers and prayed that the sale figures of "Buprane" Gas from 1974 to 1977 and November, 1977 to 1980 disclosed in the application may be taken into consideration while deciding the injunction application. As these sale figures were not filed by the defendants at the time of hearing of the injunction application and the plaintiffs had no notice of it, I directed rehearing of injunction application. Accordingly I reheard the matter and again reserved orders on the application.

The learned counsel for the defendants contends that the mark "Buprane" used by the defendants is quite different and distinct from the plaintiffs mark "Burshane" and therefore, there is no likelihood of any confusion or deception being caused in the mind of an unweary purchaser while purchasing the product of defendants. It is also contended by the learned counsel that the defendants are selling their product under the mark "Buprane" since 1974 whereas the present suit for injunction was filed by the Plaintiffs on 25-5-1980 and as such there is a delay of about six years in filing the present suit which alone is sufficient for refusal of temporary injunction in the Case. None of the above contentions raised by the learned counsel for the defendants has substance. I will first deal with the point of delay raised by the defendant. In support of the contention that the defendant is using the mark "Buprane" since 1974 on their produce to the knowledge of plaintiffs the learned counsel for the defendant has relied on the correspondence produced by the plaintiffs alongwith the plaint and the rejoinder affidavit and the alleged sale figures of the products filed by the defendant alongwith the application under section 151, C. P. C. In so far the sale figures of "Buprane" from 1974 to 1977 are concerned Mr.Sher Ali, concedes that although in the application under section 151, C.P.C. dated 4-12-1980 the defendants have mentioned that the sale figures from 1974 to 1977 are filed as Annexure "I" to the application but in fact no such details are stated in Annexure "I". At the hearing of application I enquired from Mr.Sher Ali, if he was in a position to submit the sale figures of "Buprane" from 1974 to 1977 but the learned counsel expressed his inability to produce the same. The sale figures disclosed in Annexure "I" to application under section 151, C.P.C. relate only to the alleged period of November, 1977 to June, 1980. In these circumstances there is nothing on record to show that the defendants affected sale of "Buprane" liquid petroleum gas between 1974 to 1977. In so far the correspondence produced by the plaintiffs alongwith its rejoinder and plaint are concerned, it only show that between the years 1975-76 the defendant on various occasions made request to the plaintiffs for supply in bulk of various quantities of liquid petroleum gas to the defendants on the ground that the defendants plant had not yet started functioning. There is however, no indication in the correspondence that the defendants were selling or marketing the liquid petroleum gas under the mark "Buprane". The learned counsel for the defendants referred to some of the agreements allegedly entered into by the defendant with their distributors at different stations in the Province of Sind in the year 1974, but in view of the fact that the defendants have not disclosed the alleged sale figures for the years 1974 to 1977 and that these agreements relied, by the defendants were executed between defendants and their alleged distributors and there is nothing on record to show that the plaintiffs were aware of these agreements it cannot be said at present that the plaintiffs were aware that the defendants were selling liquid petroleum gas in cylinders under the mark "Buprane". It is not disputed by the learned counsel for the defendants that prior to the advertisement dated 10-6-1979 which was published by the defendants in the newspaper "Jung", the defendants had not advertised their product through newspapers. The Plaintiffs categorically alleged that they came to know about the sale of liquid petroleum gas in cylinders by the defendants on or about 10th June, 1979. The correspondence produced in the case show that as soon as the plaintiffs became aware of the use of the above mark by the defendants they protested against it. It is also clear from these letters that several meetings took place between the plaintiffs and the defendants to resolve the issue and at one stage the defendants showed their willingness vide their letter, dated 27-4-1980 to discontinue use of the mark "Buprane" if 'the Plaintiffs properly compensated the defendants for its losses which might arise as a result of withdrawal of trade mark "Buprane". However, it appears that the dispute could not be settled; amicably between the parties with the result the present suit was filed': on 25th May, 1980. In these circumstances I am satisfied that there was no delay on the part of the plaintiffs in instituting the present suit for injunction and on this ground alone injunction could not be refused. The next contention of the learned counsel for the defendants is that the two marks "Buprane" and "Burshane" are quite dissimilar both phonetically and visually and therefore, no case of confusion or deception is made out and as such no injunction can be granted. The learned counsel has relied on the case of Abdul Waheed v. Abdul Rahim P L D 1974 S C 104, to support his above contention. On the basis of above Supreme Court case the learned counsel attempted to argue that the trade mark "Diagon" and "Dragon" though similar in their first syllables "Dial' and "Dra" were allowed to be registered alongwith another existing registered trade mark "Saigon" and, therefore on the same analogy the marks "Burshane" and "Buprane" can also be allowed to stand side by side. This case cited by the learned counsel is of no assistance to him as in the above Supreme Court case the similarity of two trade marks namely, "Diagon" and "Dragon" were not in dispute before the Court. In the above cited case the Court concerned with the similarities of the trade marks "Diagon" and "Dragon" with the Mark "Siagon". In fact the above cited case supports the contention of Plaintiffs in this case that there is phonetic resemblance in the mark of plaintiffs and the defendants as the first syllable of the two marks namely "Bur" of "Burshane" and "Bu" of "Buprane" are phonetically similar.

In view of the above discussion, I am of the view that the plaintiff has succeeded in making out a prima facie case for grant of temporary injunction as the use of trade mark "Buprane" by the defendants is likely to cause deception and confusion in the mind of an unweary purchaser because of the phonetic resemblance in the first syllable of the registered trade mark of the plaintiff and the offending mark used by the defendant. I, therefore, grant a temporary injunction as prayed till the disposal of the suit.

M.A.K. Injunction granted.

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