Case No: In Civil Petition No. 1527 of 2003
Judge: M. M. Ruhul Amin ,
Court: Appellate Division ,,
Citation: XV BLT (AD) 2007 163
Case Year: 2007
Appellant: Tripti Industries Ltd.
Respondent: Registrar of Trade Marks
Subject: Trade Mark, Intellectual Property,
Delivery Date: 2005-7-30
Md. Ruhul Amin J
M. M. Ruhul Amin J
Md. Tafazzul Islam J
Tripti Industries Ltd.
…………………Petitioners (In Civil Petition No. 1527 of 2003)
Olympic Industries Ltd.
………...Petitioners (In Civil Petition No. 1528 of 2003)
Registrar of Trade Marks, Government of the People's Republic of Bangladesh and others
July 30, 2005
Trade Marks Act, 1940
Sections 37 & 46
The petitioners’ case is that they only intended to manufacture OLYMPIC BALPEN at the time of incorporation of the company. Thus it appears that the commodity of the respondent No.2 was already in the market and naturally became popular among the people and they also obtained registration of the trade mark on 15.8.1990 and subsequently the same was renewed for another period for 15 years as per law. Hence it is clear that the petitioners’ commodity was not in the market when the respondent’s commodity was not in the market when the respondent’s commodity namely OLYMPIC BALPEN was in the market since 1988 and its resignation was obtained. …..… (10)
Mujibur Rahman, (in both the cases) Advocate (Appeared with, the leave of the Court) instructed by Aftab Hossain, Advocate-on-Record - For the Petitioners.
Not represented - the Respondents.
M. M. Ruhul Amin J.
1. These petitions for leave to appeal are directed against the common judgment and order dated 04.08.2002 passed by a Division Bench of the High Court Division in Trade Mark Appeal Nos. 54 & 55 of 2001 allowing the appeals.
2. Short facts are that the appeals before the High Court Division were filed by Md. Sharifuddin the proprietor of registered trade mark OLYMPIC being No. 31244 dated 15.08.1990 in class 16 for BALPEN and the respondent No. 2 of those two appeals, namely, TRIPTI INDUSTRIES LTD. and OLYMPIC INDUSTRIES LTD. are two different companies these two companies filed Rectification Case Nos. 249 of 1998 and 250 of 1998 for rectification of trade mark registry by removing the aforesaid mark from the registry of the respondent No. 1.
3. In rectification case No. 249 of 1998 the case of the applicant respondent No. 2 Tripty Industries Limited is that it was a company incorporation under the (Companies Act and at the time of incorporation of the said company it had intention in its mind to diversify its business amongst others by manufacturing Olympic Ball pen with the brand name 'OLYMPIC' and accordingly the applicant created a positive atmosphere to manufacture the said products and they are already using the brand 'OLYMPIC' and in order to introduce a new Line of products namely OLYMPIC BALLPEN the applicant with its sister concern filed two separate application namely No.C-8081 and C-8082 for registration of the Mark 'OLYMPIC' in class-16 for BALLPEN. The case of the applicant in appeal No. 54 of 2001 is that they proposed to use the mark for the aforesaid product. They went to introduce it very soon and with that end in view they have filed the aforesaid application for registration of the mark and they have come up with this T.M. 26 on the ground that although the appellant is the proprietor of the mark 'OLYMPIC' they are not in continuous of the mark but for a period of more than five years from the date of its registration. Therefore, the said mark should be removed from the trademark Registry. The further case it that if the mark remains in the Registry that would give rise to confusion and deception within the meaning of section 8 (a) of the Act and also under section 10 (1) of the said Act and since the petitioner company intend to introduce new products with the self same mark and filed an application for registration of the mark they claim to be an aggrieved person both within the meaning of sections 37 and 46 of the Trade Marks Act, 1940.
4. The case of the petitioners in Rectification Case No. 250 of 1998, which was filed by the "OLYMPIC INDUSTRTES LTD." is more or less on the same line but only difference is that in T. M. 26 they stated that the company is going to market the Ball pen with the mark "OLYMPIC" very soon and the applicant started manufacturing the item with the brand name "OLYMPIC". It has been contended that "OLYMPIC" is the common symbol of identity of anything of the applicant and it was now acquired distinctiveness in respect of its products in the mind of the people.
5. The case of the appellant, in short, is that he started manufacturing of BALLPEN as back is in 1988 with the mark 'OLYMPIC", and since adoption of the mark he has been manufacturing and marking his product with the trade mark "Olympic" very extensity throughout the country and by means of continuous and extensive use, sale and publicity, the said mark has became closely associated in the minds of the public with the appellants products only and this acquired distinctiveness and therefore in due course of time to protect his interest he applied for registration of the mark and that mark was registered under registration on No. 31244 on 15.08.1990 and subsequently in 1997 it has been renewed for another period for 15 years as per law. The further case of the appellant is that seeing the popularity of the mark of the appellant, the respondents are trying to adopt an identical mark most illegally in respect of similar goods of the appellant for marking wrongful gain.
6. Both the parties adduced evidence in support of their cases before the Registrar and after hearing the parties the Registrar by two separate judgments of the same date allowed both the aforesaid rectification cases holding that the appellant proprietor has failed to establish his continuous user of the mark since its registration in 1990.
7. The High Court Division allowed the appeals as noticed earlier.
8. We have heard Mr. Mujibar Rahman, the learned Advocate who appeared with the leave of the court for the petitioners and perused the judgment of the High Court Division and other connected papers.
9. The petitioners' case is that they only intended to manufacture OLYMPIC BALLPEN at the time of incorporation of the company. Thus it appears that the commodity of respondent No. 2 was already in the market and naturally became popular among the people and they also obtained registration of the trade mark on 15.08.1990 and subsequently the same was renewed for another period for 15 years as per law. Hence it is clear that the petitioners commodity was not in the market when the respondent's commodity namely OLYMPIC BALLPEN was in the market since 1988 and its registration was obtained.
10. The High Court Division, therefore, rightly held that the petitioners were not entitled to file applications for rectification, of the trade mark registry as prayed for. There is no cogent reason to interfere with the same.
Both the leave petitions are dismissed.