Kumar Electric Works v. Anuj Electronics
1990 PTC 26
Plaintiff was a partnership firm. Vinod Kumar, Satish Kumar, T.C. Kumar end Raj Kumar were its partners. It was engaged in the business of manufacturing and marketing of electrical and electronics goods since the year 1979. In 1983 it started using Trade Mark “OLYMPUS” for its electronics and electrical products.
Plaintiff’s Trade Mark ‘OLYMPUS’ was duly registered in the name of Sh. Raj Kumar, one of the partners, in respect of electric flat irons included in class 9.
Defendant was using the mark ‘OLYMPUS’ for Black and White Television Sets. The Plaintiff filed a suit for infringement of trade mark as well as passing off against the Defendant along with an application for interim relief. The present order is on the said application.
- Plaintiff has enormous sales throughout India and has spent substantial amount of advertisements.
- On account of long, continuous and extensive user since 1983, the Plaintiff’s Trade Mark has acquired distinctiveness.
- Defendant had recently adopted the Trade Mark ‘OLYMPUS’ Black and White Television Sets which is also an electrical/electronic item and allied and cognate good of the same nature as the products of Plaintiff.
- Plaintiff was not the registered owner of the Trade Mark ‘OLYMUS’. The owner of the trademark No. 417839 dated February, 17, 1984 was Sh. Raj Kumar and not the Plaintiff.
- Defendant was using the Trade Mark ‘OLYMPUS’ in respect of television and the Plaintiff had yet to start the manufacture of sale of televisions
- Plaintiff itself had misappropriated the Trade Mark “OLYMPUS” which belongs to a Japanese Company M/s. Olympus Optical Co. Ltd. 43-2, 2-Chome, Hatagaya, Shivuyaku, Tokyo, Japan. The said Company is the registered owner of the Trade Mark ‘OLYMPUS’ in India.
- Plaintiff and the Defendant were both pirators and consequently Plaintiff was not entitled to the temporary injunction prayed for as per Capital Plastic Industries v. Kappy Plastic Industries.
On Prior Use & Reputation
Plaintiff has filed pamphlets showing that it was using the Trade Mark ‘OLYMPUS’ in respect of various other electric products such as Geysers, air cooler, Juicer-blender-grinder, washing machine, cooler pump, cooler fan, sandwich toaster etc.
The statement of sales shows that in 1982-83 its sales were to the extent of approximately 20 lacs and in 1987-88 the sales were to the extent of approximately 25 lacs.
The Defendant started using the Trade Mark ‘OLYMPUS’ in respect of television sets since August, 1988.
Plaintiff, by use of the Trade Mark ‘OLYMPUS’ in relation to its electric goods had acquired a reputation in the use of Trade Mark ‘OLYMPUS’ in the respect of the said goods.
Admittedly, the Plaintiff was not using the Trade Mark ‘OLYMPUS’ in respect of televisions. However, Plaintiff’s electronics and electrical goods namely electric fans, heat convector, air coolers, juicer-blender-grinder, washing machine, cooler pump, cooler fan and sandwich toaster were being marketed through the trademark ‘OLYMPUS’.
Plaintiff’s right to restrain the Defendant extends to cognate classes of goods, i.e. Televisions which are being sold in the same trading channel.
Registration of the mark ‘Olympus’ of Olympus Optical Company Ltd. and Non-Applicability of Capital Plastic Industries v. Kappy Plastic Industries; 1989 PTC 98
On a careful consideration I find no merit in this contention; in an action for passing off registration of Trade Mark is irrelevant. There is not iota of evidence to show that the Japanese Company has ever used this Trade Mark.
Moreover, at this stage it cannot be said that the Plaintiff was not the original originator of this Trade Mark. The Plaintiff has filed on record copies of newspapers dated December 23. 1983 in which Plaintiff advertised its goods. At this stage it cannot be said that the Plaintiff was a pirator. Division Bench judgment Capital Plastic Industries’ case is not applicable.
Temporary injunction was granted in favour of the Plaintiff and the Defendant was restrained from using the mark ‘OLYMPUS’.