Law: Civil Procedure Code (V of 1908)

Section: S.104,O.XXXIX,XLIII,R.1,2

Civil Procedure Code (V of 1908)--- ----O. XXXIX, Rr. 1 & 2---Trade Marks Ordinance (XIX of 2001), Ss. 21, 40 & 42---Infringement of registered trade mark---Registration subject to disclaimer---Scope---Appellant assailed order of Intellectual Property Tribunal whereby it had granted temporary injunction and had restrained the appellant from using the trade mark concerned---Validity---Respondent had got his trade mark registered under Class 29 that too with disclaimer---With regard to registration of Class 43 applications of both the parties were in process---Appellant could not be restrained from using the mark which pertained to services for providing food and drinks---Order passed by Intellectual Property Tribunal was not sustainable under the law---Appeal was allowed and the application for grant of temporary injunction was dismissed. Muhammad Ashraf alias Makkhan v. Muhammad Akram 2016 MLD 389 rel. Messrs Tabaq Restaurant v. Messrs Tabaq Restaurant 1987 SCMR 1090; Pioneer Cement Limited through Company Secretary v. Fecto Cement Limited through Chief Executive Officer and 3 others PLD 2013 Lah. 110; Messrs Hilal Confectionary (Pvt.) Ltd. v. Messrs Naveed Enterprises and another 2018 CLD 1 and Ghulam Mujtaba Paracha v. Muhammad Saleem 2010 CLD 311 distinguished. THIS JUDGMENT DELIVERED BY: AMIN-UD-DIN KHAN, J.--- Through this First Appeal filed under Order XLIII, Rule 1 of the C.P.C. read with section 104 of the C.P.C. appellant has challenged the order dated 14.4.2018 passed by the learned Presiding Officer, Intellectual Property Tribunal at Lahore whereby in a suit filed by the plaintiff-respondent while deciding application for grant of temporary injunction appellant was restrained from using the Mark' "Almaida". 2. Brief facts of the case are that plaintiff-respondent is running a business of providing/serving fast foods, burger, pizza under a trade mark/trade name "Almaida"' with unique logo and color scheme and to strengthen his right he has procured registration of this trade mark and copyright in respect of artistic work, get up style, color scheme, associated with the trade mark, that he permitted defendant-appellant vide franchise agreement…

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