284/2018 H.C.A Famous Brands (Private) Limited (Appellant) V/S Samsonite IP Holdings S.A.R.L & another (Respondent)
Sindh High Court
Bench: Hon'ble Chief Justice Mr. Justice Muhammad Shafi Siddiqui(Author), Hon'ble Mr. Justice Adnan-ul-Karim Memon
Order Date: 19-MAR-21
By moving an application under order VII rule 11 a litigant does not surrender to the jurisdiction of the Court. The jurisdiction is conferred by law based on facts. A litigant may be right or wrong in asserting that the Court had no jurisdiction or that the suit is barred by law. But, this act of litigant would neither confer and/or bestow nor take away any jurisdiction which in fact is conferred by law. Actions of parties prior to litigation leads to constitution of a cause to initiate proceedings in Court of competent jurisdiction. - If the two applications were not moved simultaneously and would have been filed one after the other, will a litigant still be debarred from filing the other application such as Order VII Rule 10 CPC.A simple answer to this proposition is No as rejection of plaint has its own reasons whereas return of plaint has its own. In an application under order VII rule 11 a litigant has only to show that it does not disclose a cause of action; the relief claimed is undervalued or is not properly valued and that the suit appears to be barred by law. None of these rational is available while entertaining an application under order VII rule 10 CPC, which is for return of plaint on numerous counts including but not limited to pecuniary jurisdiction and territorial jurisdiction. Courts when plaint is presented are required to see whether they are bestowed with pecuniary and territorial jurisdiction whereas under Order VII Rule 11 CPC Courts are required to see whether it is barred by law. The Court had to apply law to decide the issue of jurisdiction; it is the law that confers or takes away the jurisdiction of the Court and not based on moving of application under the aforesaid provision of law. Another proposition is that while entertaining and hearing application under order VII rule 11 CPC Court is empowered to return the plaint if the circumstances so warrants as required under the law. -Section 86(3) of the Trademark Ordinance, 2001 provides that owner of the trademark which is entitled to protection under the Paris Convention as a well-known trademark shall be entitled to restrain by injunction the use in Pakistan of a trademark which, or the essential part of which, is identical or deceptively similar to the well-known trademark in relation to identical or similar goods or services, where the use is likely to cause confusion or where such use cause dilution of the distinctive quality of the well-known trademark. - At the very outset there is nothing in the instant case which could attract Section 81 of Trademark Ordinance, 2001. The proprietor of the mark never gave up their right or it has not been demonstrated that for continuous period of five years from the date of alleged registration (in favour of user) in the use of registered mark in Pakistan, the proprietor was aware of it and that the proprietor ceased to be entitled on the basis of that earlier trademark or other rights. The engagement of the appellant with the respondent itself is enough to understand that there was no case of acquiescence at all. In fact the appellant conceded when they assumed the role of a distributor. -The appellate Court normally avoid interfering in the orders of the interlocutory nature involving exercise of discretion as the appellate Court cannot substitute its own discretion unless when the discretion has been exercised arbitrarily, capriciously, perversely or where the Court has ignored certain principles regulating grant or refusal of injunction. The appellate Court is not required to reassess the material to reach a conclusion different from the one reached by the trial Court/learned Single Judge on the consideration that another view is possible.Full judgment text for this case is not yet available on Pakistan Law Reports. Check the official Sindh High Court case law portal for the complete order.
This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.