Law:

Section:

(a) Trade Marks Act (V of 1940)--Ss. 14, 10, 8, 6, 36 & 39---Constitution of Pakistan (1973), Art 185(3)--­Leave to appeal was granted to examine, inter alia, whether the appellant had not previously used the trade mark in question and/or that they had no bona fide intention to use it in future and whether the High Court did not commit an error discoverable on the face of record when assuming that the franchise agreement between the Pakistani company and foreign company was of a date prior to the authorised user, of the trade mark by the Pakistani Company. (b) Trade Marks Act (V of 1940)--- ----S. 39---Appellant's trade mark was not registered in Pakistan but was in use since a year before through a franchise agreement---Held it could not be said that the appellant was not using the trade mark in Pakistan or that the Pakistani licensee was a prior independent user of the same in his own right. (c) Trade Marks Act (V of 1940)--- ----S. 39---Franchise agreement---Use of the trade mark by the licensee/vendee can in law be taken to be the use by the unregistered proprietor---When such an unregistered proprietor while claiming on the basis of his such part use through a licensee also claims its proposed use by the registered user who is no other than the unregistered user already in the market, no provision of law is violated---Own past use as well as future use through registered user entitled the unregistered proprietor to have the trade mark registered there being no dispute or doubt about its bona fides nor could there be on the facts brought on record and there was no likelihood of deception or confusion either.---[Mac. Laboratories Private Ltd. v. American Home Products Corporation and another AIR 1969 Cal. 342 overruled]. Mac. Laboratories Private Ltd. v. American Home Products Corporation and another AIR 1969 Cal. 342 overruled. Dristan Trade Mark's case (1986) 9 RPC 161; Caprihans (India) Private Ltd. v. Registrar of Trade Marks and others 80 CWN.222; Bostitch's case (1963) RPC 183 (Ch.D.) and G.E. Tm's case (1969) RPC 418 (Ch.D.) ref. JUDGMENT SHAFIUR RAHMAN, J: --Leave to appeal was granted to examine, inter alia, whether the appellant "had not…

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