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High Court Appeal No.25 of 1987, heard on 31st March, 1987.

--S.57--Law Reforms Ordinance (XII of 1972), S.3--Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2--Temporary injunction- Infringement of trade mark--Respondents had made a prima facie case and had also shown that their product was being marketed ever since 1983--Balance of convenience also in respondent's favour- Application for grant of temporary injunction was rightly granted- Appeal dismissed.

Khalil Kizilbash for Appellant.

Kh. Manzoor Ahmed for Respondent.

Date of hearing: 31st March, 1987.

.---This appeal assails the order of a learned Single Judge of this Court whereby he has granted temporary injunction against the appellant restraining him and his employees etc. from selling or offering for sale or advertising their goods under the mark "BIGEN" or by the use of and. packing similar to the packing of the respondent.

The respondents filed a suit for infringement, passing of injunction, accounts etc. in respect of its mark "BIGEN" which was registered in clause 3 for powder hair colour. The plaintiff claimed that he was using that mark for over more than 50 years in several other countries and since 1973 in Pakistan. An application under Order XXXIX, Rules 1 and 2 C.P.C. was also filed alongwith the suit for grant of temporary injunction. The appellant's case was that he got the same mark registered on 2-2-1980 in clause 2 as dye colour. However, at the hearing of the application Mr. Khalil Qazilbash, learned counsel for the respondent admitted before the learned Single Judge, as he did before us as well, that the two marks are the same but the mark of the appellant is registered in clause 2 for dye colour. It was further contended on behalf of the appellant that the respondents had not used their mark prior to 1983 whereas the appellant had been selling his products with the same mark since 1980.

The learned Single Judge upon comparison of the colour scheme of the two cartons, one of the appellant and the other that of the respondent was of the view that it is more or less identical. A concession to that effect was also made by the learned counsel for the appellant. It was, however, urged by him that the. respondents had no preferential rights in respect of their mark and cartons. The learned Single Judge in appreciation of the facts that the mark of the respondents was registered as far back as in 1970, whereas that of the appellant was registered in 1980, -and the wrappers of the parties being similar, held that the respondents were entitled to grant of temporary injunction prayed for and passed the impugned order accordingly.

Mr. Khalil Qazilbash, learned counsel for the appellant raised the same contentions before us which were made by him before the learned Single Judge. The two cartons of BIGEN were also produced before us and upon examination thereof we could not reach a different conclusion than the one arrived at by the learned Single Judge. The only point pressed by the learned counsel for the appellant was that notwithstanding the fact that the respondents' mark was registered in 1970 but it was not used by them until 1985 whereas the appellant is marketing his products under the mark "BIGEN" since February, 1980.

We have given our due consideration to the submissions made by the learned counsel for the appellant and we are .of the opinion that the learned Single Judge has rightly granted he application of the respondents for grant of temporary injunction. The respondents have made out a prima facie case and have also shown that their product is being marketed ever since 1983 as is evident from the figures of sale placed on the record of the suit. The balance of convenience also appears to be in their favour.

Considering all the aspects of the matter we do not find any merit in this appeal and dismiss it in limine.

These are the reasons for the short order for the dismissal passed on 31-3-1987.

S.Q./R-7/K Appeal dismissed.

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