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Civil Miscellaneous Appeal No. 17 of 1983, decided on 15th February, 1987.

---Ss.6(1)(d) & 76--Trade mark--Character or quality of goods- Registrar of Trade Marks refusing application to register word "STEPUP" to be used for baby milk--Word "Milk" with word "Stepup" might suggest that milk was meant for growing babies but since trade mark sought to be registered was only "STEPUP" and not "STEPUP MILK" same would not directly refer either to character or quality of goods--Word "STEPUP", therefore, could not be descriptive even if it was held to be descriptive otherwise--In determining the meaning that a word might convey, what was to be seen was how same was understood by an average person in the country.

The Seven-Up Company v. The Registrar of Trade Marks, Karachi 1984 C L C 3249; Park, Davis & Company v. The Deputy Registrar of Trade Marks, Karachi 1984 C L C 2623; Messrs Glaxo Laboratories Ltd. v. The Registrar of Trade Marks, Government of Pakistan P L D 1985 Kar. 630 and Messrs Bubble Up Company Inc. v. Messrs 7-Up, U.S.A. P L D 1975 Kar. 582 rel.

A.A.. Zari for Appellant.

Respondent (absent).

Date of hearing: 1st February, 1987.

The circumstances in which this appeal has arisen are that M/S Meiji Milk Products Co., Ltd., the appellant in the case filed an application No. 76056 for registration of its trade mark "STEPUP" in Class 29, in respect of "powdered Milk for Babies". However, the Registrar of Trade Marks was of the view that the trade mark sought to be registered had direct reference to the character and quality of the goods and therefore, it came within the mischief of section 6(1)(d) of the Trade Marks Act. 1940 and consequently he refused to register the trade mark. It is this decision which has now been challenged in this appeal under Section 76 of the Act.

The learned Registrar in his decision observed that the word "Stepup" was a descriptive word, having a definite and concrete meaning and keeping in view the product, which was exclusively meant for growing children he found that the word had direct reference to the character and quality of the goods in question. According to him, when the product is sold in the market, the same would be called by the name "Stepup Milk".

Before this Court the argument of Mr. A.A. Zari, learned counsel for the appellant mainly has been that although the Trade Mark sought to be registered is suggestive but the same cannot be said to have direct reference to the character or quality of the product as contemplated by section 6(1)(d) of the Trade Marks Act. Reference was also made to precedents, the first being the case of THE SEVEN UP COMPANY V. THE REGISTRAR OF TRADE MARKS, KARACHI (1984 C L C 3249). In this case the trade mark "HAPPI" or non-alcoholic soft drink Beverages, syrups and extract for the preparation of the same was found not to fall within the mischief of Section 6(1)(d) of the aforesaid Act. In another case reported as PARK, DAVIS & COMPANY V. THE DEPUTY REGISTRAR OF TRADE RKS, KARACHI (1984 C L C 2623), it was held that the word "Barbase" had no direct reference to the quality or character of certain pharmaceutical products. In MESSRS GLAXO LABORATORIES LTD. V. THE REGISTRAR OF TRADE MARKS, GOVERNMENT OF PAKISTAN (P L D 1985 Kar 630) it was once again held that trade mark "VITAMILK" which was sought to be registered for milk products was not descriptive. The last case cited by Mr. Zari on the point is the case of MESSRS BUBBLE UP COMPANY INC. V. MESSRS 7--UP, U.S.A. (P L D1975 Kar, 582). In this case a question arose whether the word "Up" in phrase "BUBBLE UP" had reference to the character or quality of the goods for which the trade mark was sought to be registered. It was held that although the word "UP" when used in combination with some other words such as "BUBBLE" did produce 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 but the word "UP" by itself would not convey any such meaning as effervescent or sparkling.

There is no doubt that the word "STEPUP" in the present case has a dictionary meaning. In fact the learned Registrar in his decision has himself referred to its meaning given in the Shorter Oxford Dictionary as "to go up from a lower position to a higher; to mount, ascend, to go up by treading on step or stairway. To mount a puplit, rostrum or the like To come forward for some purpose. To raise the status, quality, etc". According to Chamber's Twentieth Century Dictionary it means "an increase in rate, quality, output, etc. increasing or changing by steps: raising voltage". Although it is true that the word "Stepup" when used with the word "milk" might suggest that the milk was meant for growing babies, but since the trade mark sought to be registered is "Stepup" and not "Stepup Milk", the same in my opinion does not directly refer either to the character or quality of the goods. Mr. Zari has pointed out that the trade mark "Step" has been registered under No. 71904 for the same class of goods. Another Trade Mark "STEPIN" in respect of "Pharmaceuticals and Chemical Products" has also been registered under No. 30539. Furthermore, it has been pointed out that besides any meaning that the word "Stepup" may convey, what is to be seen is how the same is understood by an average person in this country. I am quite certain in my mind that the word "STEPUP" cannot be descriptive in this country even if it is held to be descriptive otherwise. I am consequently of the view that the appellant's application should not have been rejected by the learned Registrar, Trade Marks.

For the aforesaid reasons this appeal is allowed and the impugned decision is set aside and the learned Registrar is directed to take further action in application No. 76056 filed by the appellant before him in accordance with law There will however be no order as to costs.

M.Y.H./M-124/K Appeal allowed.

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