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Miscellaneous Appeals Nos. 87 to 89 of 1980, heard on 27th May, 1986.

‑‑S. 51‑A‑‑Patents and Designs Rules, 1933, R. 48‑‑Registration of designs‑‑Application for cancellation of‑‑Locus standi of applicant‑ Requirements‑‑Respondent, distributor of scooters, importing scooters from India but same were confiscated in view of claim of appellant that those scooters had kept design of scooters registered in favour of appellant‑‑Respondent applying for cancellation of design‑‑Appellant objecting that respondent not being interested was not entitled under Rule 48 of Patents and Designs Rules, 1933 to apply for cancellation‑ Respondent, held, was a trader in same sort of goods for which design had been got registered by appellant and, therefore, eminently interested in design registered in favour of appellant.

‑‑‑Ss. 43 & 51‑A(B)‑‑Patents and Designs‑‑Assistant Controller of Patents and Designs granting patents in favour of appellant under S. 43 of Act‑‑Action of Assistant Controller, held, would be deemed to be action of Controller of Designs and Patents because Assistant Controller only acted under delegated authority of Controller and if, thereafter Controller took another decision in respect of that design in a subsequent proceeding then he would not be acting without jurisdiction‑‑Two proceedings were independent of each other.

‑‑‑Ss. 51‑A & 51‑A(B)‑‑Patents and Designs‑‑Cancellation of registration‑‑Controller cancelling registration after forming opinion which was based on original newspapers and after placing reliance on copies of bills of entry and import of similar goods (scooters)‑‑Controller being expert in designs, his opinion, held, was entitled to weight‑ Appellant unable to show that there were Tabrication and concoctions‑ Objection raised by appellant about admissibility of said documents which was a mere technicality and could not be allowed to defeat substance‑‑No substantial difference existing in design of imported scooters and designs got registered by appellant‑‑Appellant's objection as to admissibility of documents ruled out and order of cancellation passed by ‑Controller maintained in circumstances.

P L D 1969 Dacca 451 ref.

Shujaat Ali for Appellant.

Riaz Brohi for Respondents.

Dates of hearing: 22nd and 27th May, 1986.

These are three connected appeals directed against the order passed by the Controller of Patents and Designs on 16‑8‑1980. The reasons of which had been supplied later.

2. The relevant facts of the case are that on 1‑4‑1977 the appellant had applied for patents and designs of "Vespa Sprint", which was granted to them on 12‑5‑1977 with the design attached. The originality of the design rested in the shape and configuration of the scooter. The same was signed by the Controller of Patents and Designs.

3. The respondent No. 1 had imported as sole‑dealer of Messrs Bajaj Motors, India certain scooters in Pakistan, which were confiscated on the basis of application made by the present appellant that those scooters were the piracy of the design registered in favour of the appellant. On 25‑9‑1977, the respondent No. 1 applied for cancellation of the design of the appellant on three grounds under section 51‑A of the Patents and Designs Act. The parties were heard by the Controller only on the point that the design had been published in Pakistan prior to the date of registration. The parties submitted their affidavits and also filed certain documents including newspaper and thereafter the Controller cancelled the design of the appellant. The learned counsel for the appellant, Mr. Shujaat has submitted that the respondent No. 1 had not shown any interest in the design registered and, therefore, he was not entitled to apply for the cancellation of registration. He relied upon Rule 48 of the Patents and Designs Rules, which requires the appellant for cancellation of registration, who states the nature of the appellant's interest and facts upon which he makes an application. He elaborated that the person applying for cancellation should be either the manufacturer of the design or the trader of the same sort of articles.

4. I have failed to understand the objection taken by the appellant Since the respondent No. 1 was claiming to be the distributor of Vespa Scooters manufactured by Bajaj in India and had imported those scooters and those scooters have been confiscated in view of the claim of the appellant that those scooters have kept the design of the scooters registered in favour of the appellant, therefore, obviously the respondent No. 1 was a trader in the same sort of goods for which the design had been got registered by the appellant and, therefore, he was eminently interested in the design registered in favour of the appellant. These contentions, therefore, fail.

The learned counsel thereafter contended that the patents and designs in favour of the appellant having been based on the report submitted by the Assistant Controller of Patents and Designs, therefore, the Controller of Patents and Designs had no authority to cancel the said registration as the Assistant Controller of Patents had acted within his statutory functions. A notification issued by the Government of Pakistan, on 1‑3‑1977 authorising the Assistant Controller of Patents and Designs to do any act or thing directed to be done by the Controller of Patents and Designs which can be transferred to him by the Controller of Patents and Designs is relied do not find any substance in submission because of the fact that the design in favour of the was registered by the Controller of Patents and Designs himself the mere fact that certain other subordinates of the Controller had processed an application of the appellant for registration is of no consequence because the order in favour of the appellant was me by the Controller himself. Moreover I am further of the view that even the Assistant Controller of patents and Designs had in fact granted the patents in favour of the appellant under section 43 of the Act still that action of the Assistant Controller would be deemed to be the action of the Controller of Patents and Designs because it is only under the delegated authority that the Assistant Controller of Patents and Designs Acts for the Controller. It is basically the Controller, who has the powers and authority to make the registration and if someone else delegated with those appears under law acts in place of the Controller then his action has to be p deemed to be of the Controller himself, but thereafter if the Controller takes another decision in respect of that design in a subsequent proceeding then he could not be deemed to be acting without jurisdiction.

5. In any case section n 51‑A of the P & D Act is an independent provision different from seot4ction 43 of the said Act. An application for registration under section ‑ 43 could be processed and finalized by the Assistant Controller who agents in place of the Controller. But it does not mean that after the de‑‑‑sign had been registered then it is the same Assistant Controller, who iris alone conferred with the jurisdiction dealing with the application for cancellation of the registration under section 51‑A(B). In any case section 51‑A(B) had invested the Controller with the powers of cancelling the registration and in the present case the Controller has used those powers and, therefore, he could not be said to have acted in any ille9legal assumption of power only because the original application for re9egistration was processed by the Assistant' Controller. Counsel has relied upon P L D 1969 Dacca 451 wherein < trade mark case the Assistant Registrar of Trade Marks had completed the enquiry into the registration of a trade mark, but on the direction of the Registrar of Trade Marks he had issued notice to the Petitioner in that case as to why these applications for trade mark should not be disallowed. In these circumstances the Dacca High Court had held that since the Assistant Registrar had acted under statutory powers and had completed the process of registration of the trade mark, therefore, the Registrar of Trade Marks had no authority to interfere in that matter. The present case o is however, completely distinguishable from the said case as there is evidence before me that the action under section 43 had been taken by the Assistant Controller but on the other hand the design registereo4d has been certified under the orders of the Controller himself. . Moreover, the action under section 43 having been completed the process initiated on the application under section 51‑A o1 cancellation of registor‑yon is an independent proceedings and can, be confused with the acrxtion under section 43 of the Act. The two proceedings are independent to each other and since the Controller has the power under section A 51‑A, therefore, his action is valid in law may further point out than at there is no evidence before me to come t, the conclusion that the AA Assistant Controller had acted in any manner in processing the application for registration of the appellant and therefore, the very objection was devoid of any force. This objection is, therefore, replied.

The appellant's counsel then took up the petition that the evidence which has been relied upon by the Controller was not admissible. This '‑t objection was taken before the Controller and he replied that contention on the basis of section 70‑A of the P & D Act which provides that the evidence shall be given by affidavit in the absence of direction of the Controller. This section further authorises the Controller to take evidence by viva voce or to be cross‑examined on the contents of its affidavit. The Controller has acted on the basis of the affidavits submitted before w_ him by the parties and he has taken into consideration the original newspaper "Dawn" and "Jang" where the design similar to that of the appellant was published on 14‑2‑1976 and on 14th August, 1976 and 15th August, 1976 in Jang. The Controller came to the conclusion that similar designs have been published in Pakistan and, therefore, it was not a new design which had been sought for registration on 1‑4‑1977. The opinion of the Controller is based on original newspaper and since he is an expert in the design, therefore, the said opinion is entitled to weight and, therefore, the order under appeal does not appear to be bad in any manner. The appellant's counsel has not been able to show me that the newspaper could not have been taken into consideration by the Controller. Moreover, I find that the Controller had considered certain bills of entry of the import of the similar scooters in 1976 by S. Q. Traders and in December, 1975 by Rehman Sons. Photostate copies E of the bill of entry and the notices have been filed and they have been relied upon. The appellant has not been able to contend that these were‑either fabrications or concoctions and, therefore, the objection in respect of the admissibility of these documents is a mere technicality which should not be allowed to defeat substance. The‑P invoices contained the photos of the Vespa Scooters imported by these traders before the application for registration had been made by the appellant and the opinion of the Patents and Designs Controller is that these were similar designs as that of the appellant. The Controller being an expert and as such his opinion is entitled to great respect and I do not see myself any substantial difference in the designs of the imported scooters and the designs got registered by the appellant. Therefore, the objection of the admissibility of evidence is also not substantial. The result is that these appeals are dismissed.

M. Y. H. Appeals dismissed.

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