Law: Trade Marks Ordinance, 2001

Section: 21,42(3)

(a) Trade Marks Ordinance (XIX of 2001)--- ----Ss. 21 42(3)---Registration of trademark subject to disclaimer---Temporary injunction, grant of---Scope---Trademarks of a garment-company and a food-company containing the same name of a celebrity---While registering its trade mark Junaid J. Jamshed, the garments-company had made a disclaimer under S. 21 of the Trade Marks Ordinance, 2001 that it would not be entitled to the exclusive use of the (celebrity) name Junaid Jamshed---Words disclaimed were the name of a celebrity, Junaid Jamshed, and thus arose the likelihood of its use elsewhere by or on the authority of the said celebrity---Effect of the disclaimer in the trade mark registration of garments-company was that unless the name Junaid Jamshed was used by another in substantially the same fashion and get-up as used by the garments-company it could not claim to be aggrieved---Comparison of the trademark of the food-company with the trade mark of the garments-company showed that there was no similarity in the fashion and get-up of the name Junaid Jamshed as used in the said two marks, therefore, in view of S. 42(3) of the Trade Marks Ordinance, 2001, the said use by food-company of the name Junaid Jamshed would not constitute trade mark infringement---Garments-company did not have a prima facie case for the grant of a temporary injunction to restrain the use of the mark/name in question by the food-company; the balance of convenience was not in its favour, nor would it suffer any irreparable loss if injunction was refused as apparently no action had been taken by it against the use of the mark in question by the food-company since about four years---Conversely, the food-company met the test of the said three ingredients for the grant of a temporary injunction---Food-company had relied upon photographs to show that during his lifetime, the celebrity himself used his name (mark in question) to promote the food-company; that the mark in question was being used by the food-company for about four years without objection; and that the celebrity had given a written authorization to the food-company to use his name---High Court directed that pending the suit the…

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