Capital Plastic Industries v. Happy Plastic Industries
Capital Plastic Industries v. Happy Plastic Industries
1988 PTC 182
Brief Facts:
As per the Plaintiff, the Plaintiff started using the trademark RABBER from 1983 in respect of thermos jug. Plaintiff also obtained Copyright registration in the artistic label bearing the mark RABBER in 1984. After September, 1985, Plaintiff dropped the usage of the mark RAHBER and started to use the mark RABBER.
In March 1986, Plaintiff came to know that the Defendant had started manufacturing and selling thermos jug under the trade mark RAHBER. Plaintiff filed a suit for permanent injunction against the Defendant along with an application for interim relief. The present order is on the adjudication of the said application.
Plaintiff’s Case:
- Plaintiff has acquired enviable reputation in the marks RABBER and RAHBER/
- The distinctive features of the trade mark of the Plaintiff are that the letters of the trade mark RABBER have been put in the manner of semicircle. It is further alleged that the Plaintiff is also using the trade mark Rahber written in the same manner as Rabber in respect of the same goods since September 1985.
- Plaintiff is the owner and proprietor of the trade mark RABBER and RAHBER. The Defendant is passing off the thermos jug manufactured by him under the trade mark Rahber as that of the trade mark of the Plaintiff.
Defendant’s Case:
Plaintiff is neither the proprietors nor the registered proprietor of the trade mark RABBER or RAHBER in respect of thermos judge. The trade mark RAHBER is registered in the name of Plasticrafters Limited, Karachi.
Plaintiff’s alleged label is not an original artistic work. The design was made public much prior to the date as alleged by the Plaintiff.
Plaintiff had abandoned the trade mark RABBER in September 1985 and adopted another mark RAHBER.
Defendant is using the mark RAHBER in respect of Thermos since 1.4.1983. Plaintiff claims to be using the mark RAHBER since September 1985, much after the mark was used by the Defendant and as such the Plaintiffs cannot claim to be prior users of the mark RAHBER.
Court’s Observations:
RABBER
From the material on record it is prima facie established that Plaintiff is using the mark ‘RABBER’ from the year 1984. However, Plaintiff discontinued this mark in September 1985 and started using the other mark RAHBER. No material has been placed on record to show that after September 1985 there is any sale by the Plaintiff under the mark RABBER.
Plaintiff has claimed relief on the basis of the trade mark RABBER. In my opinion, Plaintiff has discontinued and abandoned this mark after September 1985. If that is so, Plaintiff has not made out a case for the grant of injunction so as to restrain the Defendant from using the mark RAHBER. Plaintiff is not likely to suffer any irreparable injury because since September 1985, Plaintiff is not using this mark.
RAHBER
Defendant has produced a certificate showing that the mark RAHBER is registered in the name of a third party.
Defendant claims to be the user of the mark RAHBER since April 1983. No material has been produced by the Defendant on the record to show that the Defendant had been actually using the mark RAHBER from 1983.
Plaintiff is not entitled to any relief on the basis of this mark. Both the Plaintiff as well as the Defendant are pirators. They have copied and adopted this mark which already stands registered in the name of Plasticrafters Limited. None of them is entitled to claim any relief on the basis of this mark. Even otherwise, Plaintiff has not been able to establish that he has acquired a valuable goodwill or reputation in respect of the mark RAHBER.
The application for interim relief was dismissed.