| Citation(s) |
|---|
| 2002 SLG 731 2002 SLD 731 2002 CLD 1623 |
Sindh High Court
Suits Nos.1109 and 369 of 2001, Civil Miscellaneous Applications Nos.4885, 26363 and 6092, decision dated: 25-04-2002. dates of hearing: 12-11-2001; 14th and 21st January, 2002
MUSHIR ALAM, JUSTICE
Ms. Navin Merchant for Plaintiff. Raja M. Iqbal for Defendant No. 1. Muhammad Aslam for Defendant No. 2.
Suits Nos.1109 and 369 of 2001, Civil Miscellaneous Applications Nos.4885, 26363 and 6092, decision dated: 25-04-2002. dates of hearing: 12-11-2001; 14th and 21st January, 2002
MUSHIR ALAM, JUSTICE
Ms. Navin Merchant for Plaintiff. Raja M. Iqbal for Defendant No. 1. Muhammad Aslam for Defendant No. 2.
ABDUL WASIM
VS
Messrs HAICO through Sole Proprietor/Partner and 2 others
Law: Trade Marks Act, (V of 1940)
Section: 20,20(2),21,22,25,26
Law: Specific Relief Act, 1877
Section: 54
(a) Trade Marks Act (V of 1940)--Ss. 20(2) & 21 Specific Relief Act (I of 1877), S.54, illust.(w) Trade mark Grant of injunction against unauthorized use of trade mark Claiming of infringement of unregistered trade mark Disputed trade mark was unregistered and the plaintiff claimed its infringement by defendants Validity Trade mark applied to a property itself is a property Explanation to S.54 of Specific Relief Act, 1877, recognizes trade marks as property because it is valuable and intangible property and cannot be allowed to be encroached upon by any person Registered owner of a trade mark has exclusive right under S.21 of Trade Marks Act, 1940, to the use of the trade mark in relation to the goods with which ft is reputed to be associated As the trade mark, the subject matter of the present suit was not registered, therefore, the plaintiff could not claim any infringement of the mark, at the best plaintiff s claim felt on passing off action recognized in terms of S.20(2) of Trade Marks Act, 1940. (b) Trade Marks Act (V of 1940) S.14 Right to use a trade mark Such right under S.14 of Trade Marks Act, 1940, vests either in a person who is the proprietor of the mark or who proposes to use a mark and apply in writing to the Registrar. (c) Trade Marks Act (V of 1940) S.79 Phrase 'publici juris' Applicability Trade mark common to the trade, when largely used unhindered by more than one person in the same trade, such trade mark becomes publici juris and all traders in the same field can claim their right on such trade mark. Andhra Perfumery Works v. Karupa Surya Narayan AIR 1969 Mad. 129 ref. (d) Trade Marks Act (V of 1940) Ss. 21, 22, 25 & 26 Registered trade mark Right of prior user Scope Exclusive right to use trade mark by virtue of registration is conferred on a proprietor in terms of S.21 of Trade Marks Act, 1940, and such right is sub-servient to exception as provided under Ss. 22, 25 & 26 of Trade Marks Act, 1940 Exclusively to use mark recognized under S.21 of Trade Marks Act, 1940, does not affect the right of prior user, may it be unregistered Right in a trade mark created by prior user, despite non registration was superior right recognized…
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