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Miscellaneous Appeal No.81 of 1980, decided on 15th December, 1986.

---Ss.6(1)(e), 10 & 76--Registration of trade marks--Registration of appellant's Trade Mark 'H D' refused on ground that it was objectionable under S.6(1)(e) of Act and that there was no evidence to show that said mark was distinctive of goods of appellant--Word 'H D' was written in a rectangular device in unusual manner and not written as is ordinarily in that written fashion in English language and was also coupled with rectangular device which was as much a part of said mark as was word 'HD'--Appellant leading evidence to show that they had been using said mark on their vehicles imported in Pakistan and they placed sale figures to establish distinctiveness of Trade Mark- Held, refusal to entertain application of appellant was not justified in circumstances--Order refusing registration set aside and case remanded with direction to accept application of appellant for registration and proceeding same in accordance with law.

Diamond I Motor Car Company's Case 38 R P C 377 rel.

Iqbal Kazi for Appellant.

Respondent in person.

Date of hearing: 15^th December, 1986.

The appellant has filed this appeal under section 76 of the Trade Marks Act, challenging the order of the Deputy Registrar, dated 17-4-1980, whereby he refused to register the mark 'H D' applied for registration in respect of vehicles and appratus for locomotion on the ground that the mark was objectionable under section 6(1)(e) of the Act as well as there was no evidence to show that the said mark was distinctive of the goods of the appellant.

Mr Iqbal Qazi, learned counsel for the appellant, contends that the mark applied for registration by the appellant did not consist of only the alphabet HD, but that it was a composite mark consisting of a rectangular device, in which. the word HD was written in an unusual and peculiar fashion. It is also contended by the learned counsel that the word, which is described as D is not, in fact, alphabet D of the English language, but is a block, which resembles the alphabet 'D'. The learned counsel accordingly contends that the refusal by the Registrar to entertain the application was arbitrary, and, in any case, if the Registrar was of the view that the word HD cannot be registered being alphabet of the English language, he could have obtained disclaimer from the appellant, which he was willing to offer. The Deputy Registrar, who is on Court notice, on the other hand, contended that if the letter HD is taken away from the trade mark applied for registration by the appellant, then nothing remains in the mark of the appellant. After hearing the learned counsel for the appellant and the learned Deputy Registrar, I am of the view that the refusal by the Deputy Registrar to entertain the application of the appellant was not justified. I have seen the mark HD applied for registration by the appellant, and it is quite clear that the word HD, which is written in a rectangular device is not written ordinarily in that fashion in the English language. Moreover, A it is rightly contended by the learned counsel for the appellant that the mark applied for registration by the appellant did not consist of only the word HD, but they were coupled with a rectangular device as well, and even if there was objection to the registration of the word HD, there could not have been any objection to the rectangular device, which was as much a part of the said mark as was the word HD. The learned counsel, in support of his contention, has referred to an unreported decision in the case of Asahi Seisakusho Sohonsha, Limited v. The Deputy Registrar of Trade Marks (Miscellaneous Appeal No.138/1967) decided by a learned Single Judge of this Court on 9th March 1973, and' Diamond I Motor Car Company's case, reported in 38 R.P. C. 377. Both the cases cited by the learned counsel fully support his contention that the mark applied for registration by the appellant could be registered. It may be mentioned here that one of the grounds, on which the Deputy Registrar refused to register the mark of the appellant, was that there was no evidence available before the Tribunal to reach the conclusion that the appellants had sold their goods is Pakistan with the above mark. In this appeal, the appellants have led evidence to show that they have been using the above mark on their vehicles imported in Pakistan and have also placed the sale figures to establish the distinctiveness of the above mark. It is not necessary to examine the evidence produced by the appellant in this appeal, as I propose to remand back the case to the Deputy Registrar for consideration of the application of the appellant B for registration of the above mark in accordance with the law. I accordingly accept this appeal, set aside the order of the Deputy Registrar and send the case back to the Deputy Registrar with the direction to accept the application of the appellant for registration of the mark and process the same in accordance with the law. The appellants will be entitled to lead the evidence which they have placed in this appeal, to establish the distinctiveness of their mark before the Tribunal if they so desire. There will be no order as to costs.

M.Y.H./H-55/K Appeal accepted.

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