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Miscellaneous Appeal No. 32 of 1986, decided on 20th May, 1987.

---Ss.6,8,10 & 76--Trade Marks "WHOBUCIDE" and "WHOMOCIDE" sought to be registered by respondents and appellants respectively relating to same description of goods--Words "whobucide" and "whomocide", without doubt, appearing both visually and phonetically similar and both marks consisting of .a similar device of ribs and lungs--Trade Mark of respondents, however, was showing red and green as dominating colours which were not found in the other Trade Mark but for purposes of comparison between two Trade Marks their main and leading features were to be taken into consideration- Registrar finding that appellants had failed to establish user of their Trade Mark since 1971--Sale figures of appellants were found to be inconsistent and unreliable and not supported by any documentary evidence--Documentary evidence adduced by respondents on the other hand, found to be sufficiently supporting their oral evidence in respect of user of Trade Mark since 1957--No convincing reasons advanced on behalf of appellants for disagreeing with findings of Registrar- Appeal dismissed.

Kerly's Law of Trade Marks and Trade Names; Jamia Industries Ltd. v. Caltex Oil (Pak.) Ltd. and another P L D 1984 S C 8; Insaf Soap Factory v. Lever Brothers Port Sunlight Ltd. P L D 1959 (W.P.) Lah.381 and Aluminium Products Ltd. Chittagong v. Registrar of Trade Marks Chittagong P L D 1958 Dacca 481 ref.

Pakistan Soap Factory v. Chittagong Soap Factory P L D 1970 S C 460 and Surya Brothers v. Dada Soap Factory 'Ltd. P L D 1971 Kar.189 distinguished.

Akhtar Hussain in for Appellants.

Khawaja Mansoor for Respondents.

Date of hearing: 25th February, 1987.

This appeal has arisen out of proceedings which were pending before the Registrar Trade Marks for registration of Trade Marks "WHOBUCIDE" and "WHOMOCIDE" under applications No.73497 and 74659 respectively. The Trade Mark "WHOBUCIDE" was sought to be registered by the respondents in respect of a unani medicine comprising, inter alia, of the word "WHOBUCIDE", with a device of ribs, lungs and leaves and letters 'A' and 'C'. Similarly the Trade Mark sought to be registered by the appellants also comprised of words "WHOMOCIDE" with a device of a camel and lungs and ribs besides letters 'A' and 'L'. Admittedly both the Trade Marks relates to the same description of goods.

2. Both the parties originally claimed user from 1971 but thereafter, through an additional affidavit, the respondents claimed user of the Trade Mark since 1957. The Trade Marks were respectively advertised. in the Trade Mark Journal and both the parties entered into opposition. However, the Trade Mark of the respondents was allowed to proceed to registration and the application of the appellants was dismissed by the learned Registrar by the same order, dated 6-4-1986. This order has now been impugned in this appeal.

The learned Registrar found the two marks identical and on the basis of evidence he concluded that the appellants had failed to establish continuous user of their mark since 1971. The Trade Mark of the respondents, on the other hand, was found to be in continuous use since 1957.

3. I have heard Mr.Akhtar Hussain, learned counsel for the appellants and Mr. Khawaja Mansoor, learned counsel for the respondents.

4. Firstly, according to Mr.Akhtar Hussain, the two marks are clearly distinguishable and secondly, the appellants had at least been able to establish honest concurrent user of their mark, and consequently, the order passed by the Registrar is erroneous.

5. There, however, appears to be no substance in either of these contentions. As far as the first contention of the counsel is concerned, the words "Whobucide" and "Whomocide" without any doubt, appear to be both visually and phonetically similar. Besides than both the marks consist of a similar device of ribs and lungs. No doubt the Trade Mark of the respondents shows red and green as dominating colours which are not found in the other trade mark, but for the purpose of comparison between the two Trade Marks their main and leading features are to be taken into consideration. Kerly in his book known as Kerly's Law of Trade Marks and Trade Names states that:-

"Two marks, when placed side by side, may exhibit many and various differences yet the main idea left on the mind by both may be the same. A person acquainted with one mark, and not having the two side by side for comparison, might well be deceived, if the goods were allowed to be impressed with the second mark, into a belief that he was dealing with goods which bore the same mark as that with which he was acquainted. Thus, for example, a mark may represent a game of ball; another mark may show players in a different dress, and it very different positions, and yet the idea conveyed by each might be simply a game of football. It would be too much to expect that persons' dealing with trade marked goods, and relying, as they frequently do, upon marks, should be able to remember the exact details of the marks upon the goods with which they are in the habit of dealing. Marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole. Moreover, variations in details might well be supposed by customers to have been made by the owners of the Trade Mark they are already acquainted with for reasons of their own. "When the question arises whether a mark applied for bears such resemblance to another mark is to be determined by considering what is the leading characteristic of each. The one might contain many, even most, of the same elements as the other, and yet the leading, or it may be the only, impression left on mind might be very different. On the other hand, a critical comparison of two marks might disclose numerous points of difference, and yet the idea which would remain with any person seeing them apart at different times might be the 'same. Thus, it is clear that a mark is infringed if the essential features, or essential particulars of it, are taken. In case of device marks, especially it is helpful before comparing the marks to consider what are the essentials of the plaintiff's device; with word marks, the court is apt to be more impressed by the danger of giving the plaintiffs what amounts to a monopoly in a large class of words."

Reference in this respect may also be made to the case of Jamia Industries Ltd. v. Caltex Oil (Pak.) Ltd. and another P L D 1984 SC 8 wherein the same view has been propounded by the Supreme Court. Other cases which may be referred to on the point are the cases of Insaf Soap Factory v. Lever Brothers Port Sunlight Ltd., PLD 1959 (W.P.) Lah.381 and Aluminium Products Ltd., Chittagong v. Registrar of Trade Marks, Chittagong P L D 1958 Dacca 481. The first argument of Mr.Akhtar Hussain, therefore, cannot be accepted.

6. The next argument of the counsel is that, in any case, the mark of the appellant should have been registered on the basis of honest and concurrent user. Reliance in this respect has been placed B on the case of Pakistan Soap Factory v. Chittagong Soap Factory PLD 1970 S C 460, wherein it was held by the Supreme Court that Trade Mark would be registerable where honest and concurrent user of the same has been established and such use has not been challenged by the other side for a long period of time. Similar views have also been expressed in Surya Brothers v. Dada Soap Factory Ltd. P L D 1971 Kar.189. However, the onus to establish honest and concurrent user in the present case was clearly upon the appellants.

7. Turning to the evidence on this point which has been so thoroughly discussed in the decision of the learned Registrar, he has found that the appellants had failed to establish user of their Trade Mark since 1971. According to the Registrar, their sale figures were inconsistent and unreliable and were not supported by any documentary evidence. The reasons stated by the Registrar fur the same, in his own words, are as follows:-

"Moreover, there is no documentary evidence to show that the aforesaid sale figures relate to the goods sold under the Trade Mark 'Whomocide'. The party No.2 (thereby meaning the appellants) has not produced any documentary evidence such as invoices or orders from persons engaged in the trade in support thereof. The only documents filed are thirty-eight loose cash memos showing the sale of goods under the Trade Mark 'Whomocide' from 1977 to 1981. Though period of user is claimed since 1971 in application No.74659 of party No.2 whereas loose cash memos relate to the order 1977 to 1981. Such cash memos can be prepared easily. The cash memos filed are unreliable. Further, documents filed is copy of Agency Agreement executed between A1-Anis Laboratories Hyderabad and Mohammad Ali Brothers Hyderabad. No documentary proof has been filed to this effect that sale of Syrup bearing Trade Mark 'Whomocide' was effected by the Agency Holder and this claim has not been substantiated by documentary evidence. The other document filed is a certificate from Firdous Cinema dated 9-8-1981 which has been issued in favour of M/s. Alliance Unani Laboratory, Hyderabad which does not concern party No.2 as such is not of any assistance in the present case. The last documents filed are the affidavit deposed by Mohammad Ramzan, Abdul Wahid and Abdul Hamid. These affidavits are stereotyped. It appears that the same were prepared and deponents have only put their signatures. Therefore, no reliance can be placed on these affidavits."

8. On the other hand, documentary evidence adduced by they respondents consisting of eight post cards pertaining to the year 1957, old issues of magazine "Jam-e-Sihat" containing advertisement of the respondents' mark, besides bills, certificates, etc. was found to be sufficiently supporting their oral evidence in respect of user of the mark since 1957.

9. Since no convincing reasons have been advanced on behalf of C the appellants for disagreeing with the findings of the learned Registrar, I find no reasons to interfere with the same. The judgments cited by Mr. Akhtar Hussain, given in the case of Pakistan Soap Factory and Surya Brothers are clearly distinguishable.

10. For the foregoing reasons, I do not find force in this appeal and the same is, therefore, dismissed with no order as to costs.

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