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Miscellaneous Appeal No. 5 of 1976, decided on 29th April, 1984.

-----S. 6 (1) (d)‑Character or quality of goods‑‑Word "Hapi" for non‑alcoholic soft drink beverages not descriptive of product but relatable to condition of consumer ‑ Registrar, Trade Marks refusing to register trade mark "Hapi" for "non‑alcoholic soft drink beverages, syrups and extract for preparation of same" on ground that word "Hapi" had direct reference to character and quality of goods as it was not a word coined for first time and connoted happiness ‑ Held, word "Hapi" even if taken in its phonetical form to mean 'happy' would not have reference to quality or character of goods but would have reference to consumer and not to goods consumed as pleasure or happiness by consump tion is a condition which related to consumer and not to article consumed‑Word "Hapi", held, did not fall within mischief of Cl. (d) of S. 6 (1)‑‑Order of Registrar set aside.

Messrs Bubble Up Company Inc. v. Messrs 7‑Up, U. S. A. P L D 1975 Kar. 582 rel.

Khwaja Mansoor for Appellant.

Syed Inayat Ali for Respondent.

Date of hearing: 29th April, 1984.

This is an appeal under section 76 of The Trade Marks Act, 1940 against the order of Registrar of Trade Marks, Karachi, dated l2th June, 1976, whereby he had refused to register the trade mark 'Hapi' for the products of the appellant company.

2. The appellant had made an application being No. 62975, dated 28th October, 1975 for the registration of trade mark 'Happi' in class 32 for 'non‑alcoholic soft drink beverages, syrups and extract for the preparation of same. The Registrar of Trade Marks was of the view that the word Hapi' has direct reference to character any quality of the goods i. e. beverages produced by the appellant company and as such the trade mark falls within the mischief of section 6 (1) (d) of the Trade Marks Act, 1940 (hereinafter referred to as the Act). The registrar was further of the view that the word 'Hapi' is not a word coined for the first time but it connotes happiness and as such it relates to the character and quality of the goods.

3. The contention of Mr. Khawaja Mansoor, learned counsel for the appellant is that the word 'Hapi' is a word coined for the first time by the appellant and that it has no reference whatsoever to character and quality of the products to which the trade mark is intended to apply i.e. soft drinks beverages. He has relied on the case of Messrs Bubble‑Up Company Inc. v. Messrs 7‑Up, U. S. A. (P L D 1975 Kar. 582 ). 1n this case the word 'Up' in 'Bubble‑Up' was objected to for the reason that it had reference to the character and quality of the goods. Tufail Ali A. Rehman, C. J. dispelled the objection with the following observations :‑

"It is true, that the moment the word 'Up' was thought of in combi nation with some other word such as 'Bubble' the image of a liquid intended for drinking and contained in a transparent vessel through which the bubbles could be seen coming up to the surface ire was conjured up. But this was not the result of the word by itself k but only in combination with some suitable word and such an ' association of ideas is bound up also with a large number of other propositions and it is not correct to say that, on that account, the word by itself, conveyed any such meaning as effervescent or sparkling."

4. In the present case the word 'Happi', even if taken in its phonetical form to mean happi', would not have any reference to the quality or character of the goods, but it will have reference to the person who consumes the goods. Clause (d) of section 6 (1) of the Act does not prevent the registration of a word which has reference to the consumer and not to the goods consumed. Thus, the word 'Hapi' does not in any way refer to the quality of the products of the appellant, although it may be applying to the condition of the consumers who may be consuming the products. The learned Registrar has manifestly erred in holding that the word 'Hapi' resembles phonetically to word 'happy' which means pleasure or happiness by consumption. The argument is misconceived, because pleasure or happiness by consumption is a condition which relates to the consumer and not to the article consumed and as such the word 'Hapi' shall not fall within the mischief of clause (d) of section 6 (1) of the Act.

5: Mr. Khawaja Mansoor, learned counsel for the appellant has also relied on an unreported judgment of this Court in Miscellaneous Appeal No. 62 of 1978, decided on 19th December, 1983, in which the registration of the words 'High Life' in respect of alcoholic drinks was objected to on the ground that the words have direct reference to quality and character of the alcoholic drinks produced by the appellant company. It was held by Zahoorul Haq, J. in the above case as under :‑

"To my mind 'High Life' would be having a direct reference to the life style of a society or its members and not to the goods in question and, therefore, the mark 'High Life' could be registered in respect of the goods mentioned above. This appeal is, therefore, allowed. I may add that the word 'High Life' 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 'High Life', he will start thinking of beer, ale or syrup."

The above observations are fully attracted to the facts of the present case.

6. Learned counsel for the appellant has, by way of precedents, produced several notifications published in the Trade Marks Journals in which similar words have been registered as a trade mark for soap and other detergents of the Procter and Gamble Company. Thus, the word 'Lift' is proposed to be registered for beer, ale and porter. The word 'Joy' has been registered as a trade mark for perfumes, powders, creams, toilet lotions etc. Lastly word Bliss' has been registered as a trade mark for beer, ale and porter. The learned counsel has produced photostat copies of relevant pages of the Trade Marks Journal, dated 1st September, 1958 for the word cheer', 1st May, 1970 for the word Lift', 1st November, 1960 for the word Joy' and 1st March, 1975 for the word Bliss'. If the above words cannot be deemed to have direct reference to the products to which they were intended to apply, then it is not understood how the learned Registrar held that the word 'Hapi' would refer directly to the quality and character of the goods produced by the appellant.

For the above reasons the appeal is allowed, the order of the Registrar is set aside and he is directed to register the trade mark as applied by the appellant.

M. B. A. Appeal allowed.

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