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Miscellaneous Appeal No.4 of 1986, decided on 4th March, 1987.

---Ss.8(a) & 10--Trade marks--Similarity in two trade marks--Registrar refusing to register appellant's trade mark 'TEXAPOL' on opposition filed by respondent who was proprietor of Trade Mark 'TEXAPON', on ground that mark sought to be registered by appellant was identical and confusingly similar to respondent's registered Trade Mark 'TEXAPON' both visually and phonetically and as such same would offend against S.8(a) of the Act--Goods of respondents comprised chemicals and used as base for shampoos, shaving creams etc. and goods in respect of which appellant's Trade Mark was sought to be registered was detergents and looking at nature of goods it could hardly be said that there was any trade connection between them- Goods of both parties could not form part of each other nor put to same use nor commonly dealt with same cause of business nor sold to same kind of buyers--Held, there was therefore, no likelihood of appellant's goods being connected with those of respondent's resulting in causing of deception or confusion in mind of public, there being no relationship either direct or otherwise between two classes of goods, S.8(a) of Act was not attracted--Order of Registrar set aside and direction issued to him to proceed with application of appellant for registration.

Akhtar Hussain for Appellant.

Syed Shaukat Ali for Respondent No.1.

Date of hearing: 26th February, 1987.

This appeal is directed against the decision passed by the Registrar, dated 24-10-1985, accepting the respondent's opposition and refusing to register the appellants' trade mark TEXAPOL 90 in respect of Bleaching Preparations, Dentifrices and Detergents.

The Registrar earlier admitted the trade mark for advertisement in the trade mark Journal. This respondent who was proprietor of another trade mark "TAXA.PON" in the same class filed opposition. The appellants then filed counter statement and filed affidavits of one of their directors, and distributors showing sale figures of Rs.3,20,000, Rs.70,000 and Rs.19,47,000 in the years 1981, 1982 and 1983 respectively. However, the Registrar allowed the opposition and rejected the appellants' application by his order dated 24-10-1985.

In his order the Registrar held that the mark sought to be registered by the appellant was identical and confusingly similar to the respondents' registered trade mark "Texapon" both visually and phonetically. He also found that the respondent's trade mark had acquired sufficient reputation in the market in Pakistan and registration of the appellants' trade mark was likely to cause confusion and deception among unwary purchasers. Consequently it was held by him that the same would offend against section 8(a) of the Trade Marks Act, 1940.

The contention of Mr. Akhtar Hussain learned counsel for the appellants has been that the order of Registrar, Trade Marks clearly suffered from error as admittedly the respondents were manufacturing sodium ethyl sulfates and sodium lauryl ethyl sulfates and both being chemicals were different from the goods of the appellants in respect of which the trade mark was sought to be registered. Not only that, but according to the counsel, the first respondent had also failed to establish that the goods sold by the respondents had acquired reputation in the same class as the appellants' goods. He further argued that the mark was to be seen in its entirety and there was nothing to indicate that the two marks were visually and phonetically similar. Lastly, it was argued that trade mark "TEXAPON" and "TEXTOL" had both been registered in the same class and consequently, there was no reasons why the second respondent should have refused to register "TEXAPOL-90". Mr.Shaukat Ali, on the other hand, fully supported the impugned decision.

Although there is no doubt that the similarity in the two marks "TEXAPON" and "TEXAPOL" appears to be so well marked that the likelihood of their causing deception or confusion in the minds of the public cannot, be ruled out. However, the appellants' counsel has laid stress on the nature of goods to which the rival trade marks relate. In this respect it may be pointed out that according to the admitted position, the goods of the respondents, which comprise chemicals, are used as base for shampoos, shaving creams, etc. which shows that the same are being used as raw material for manufacture of other products and admittedly the goods in respect of which the A appellants' trade mark is sought to be registered are detergents. Looking at the nature of the goods it hardly can be said that there is any trade connection between them. Consequently as was held by Noorul Arfin, J. in Keiser Jeep Corporation v. Saber Saleem Textile Mills Ltd. (P L D 1965 Kar.376). "The goods of the appellants and the respondents cannot form part of each other. The goods are not put to the same use nor are they commonly dealt with in the same course of business." Besides that the goods are not being sold to the same kind of buyers. Therefore, in my view, there is no likelihood of the appellants' goods being connected with those of the respondents resulting in causing of deception or confusion in the mind of the public. If there is no relationship either direct or otherwise between the two classes of goods, then section 8 (a) of the Trade Marks Act cannot be attracted.

This appeal is consequently allowed and the order passed by) the Registrar, Trade Marks, dated 24-10-1985, is set aside and the Registrar is directed to take further steps in respect of the appellants' Application No.76008. The parties are left to bear their own costs.

M. Y. H./N-62/K Appeal allowed

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