2003 (7) TMI 722 - HC - Indian Laws

Summary

Issues Involved:
1. Application for injunction against trademark infringement.
2. Allegation of perjury and false statements.
3. Jurisdiction and cause of action.
4. Similarity and descriptiveness of trademarks.
5. Validity of service of summons.
6. Publici juris and monopoly over the trademark.
7. Balance of convenience and public interest.
8. Leave to sue and proper address for service.

Issue-Wise Detailed Analysis:

1. Application for Injunction Against Trademark Infringement:
The applicant sought an injunction to restrain the respondent from using the trademarks PIO, PIO-15, and PIO-30, which are alleged to be deceptively similar to the applicant's trademarks PIOZ-15 and PIOZ-30, pending the suit. The applicant argued that the words PIO and PIOZ have hardly any difference and cited a prior case where an injunction was granted against the use of a similar trademark, PIOZED.

2. Allegation of Perjury and False Statements:
The first respondent filed an application for issuance of notice to the applicants to prosecute them for perjury and making false statements. The respondent argued that the applicant knowingly provided a false address for service of summons, which was not the registered address of the first respondent but that of a consignee agent.

3. Jurisdiction and Cause of Action:
The applicant argued that the cause of action arose within the jurisdiction of the Court as the first respondent had its office within the jurisdiction and had effected sales of the products bearing the offending trademark. The respondent countered that Section 20 of the CPC was inapplicable and that the applicant had not obtained leave to sue the first defendant, who carried on business outside the jurisdiction of the Court.

4. Similarity and Descriptiveness of Trademarks:
The respondent argued that PIO is descriptive of the chemical pioglitazone hydrochloride and is publici juris, meaning the applicant cannot claim a monopoly over it. The Court noted that many products using the same ingredient for diabetes treatment use the word PIO in their trademarks, and the names of the two products (PIO and PIOZ) are not identical.

5. Validity of Service of Summons:
The Court emphasized the importance of proper service of summons, stating that the address for service on a corporation cannot be just any place where the products are sold but must be the registered address of the company or served in the manner laid down in Order 29 of the CPC. The applicant had provided the address of a consignee agent instead of the registered address, which was within the applicant's knowledge.

6. Publici Juris and Monopoly Over the Trademark:
The Court held that the word PIO is publici juris and the applicant has no monopoly over it. The applicant had previously stated in another suit that the grievance was against the use of the word PIOZ as a whole and not PIO as such, indicating awareness that they cannot claim ownership over the word PIO.

7. Balance of Convenience and Public Interest:
The Court found that the balance of convenience was not in favor of granting the injunction. Both products are marketed in the same strengths and contain the same ingredient, pioglitazone hydrochloride. The Court noted that public interest does not suffer as the lesser degree of proof or more stringent test is not necessary in this case.

8. Leave to Sue and Proper Address for Service:
The applicant had not obtained leave to sue the first defendant, who carried on business outside the jurisdiction of the Court. The Court found that the applicant had deliberately provided the address of a consignee agent instead of the registered address, which was within the applicant's knowledge. This deliberate action was sufficient to deny the relief in favor of the applicant.

Conclusion:
The injunction application (O.A. No. 95 of 2003) was dismissed with costs due to the reasons that the word PIO is publici juris, the applicant has no monopoly over it, the names of the two products are not identical, the applicant had not obtained leave to sue the first defendant, and the applicant did not provide the correct address of the first respondent. The application for prosecution for perjury (Application No. 1396 of 2003) was closed without initiating criminal proceedings, as the discrepancies in the address were deemed to be due to a bona fide mistake of fact.