2001 (7) TMI 1305 - HC - Indian Laws

Summary

Issues Involved:
1. Application for ad-interim injunction by the plaintiffs.
2. Application for vacation of the ad-interim injunction by the defendant.
3. Determination of passing off action.
4. Examination of the proprietary rights over the trade mark "LIPICARD".
5. Consideration of the similarity between the trade marks "LIPICARD" and "LIPICOR".
6. Evaluation of the balance of convenience and inconvenience.

Detailed Analysis:

1. Application for Ad-Interim Injunction:
The plaintiffs filed an application under Order XXXIX Rules 1 and 2 read with Section 151, CPC for grant of ad-interim injunction. The court had previously passed an order on 9th February 2001, restraining the defendant in terms of para 15 of the application until further orders.

2. Application for Vacation of the Ad-Interim Injunction:
The defendant filed an application under Order XXXIX Rule 4, CPC for vacation of the order dated 9th February 2001. Both applications were heard together and disposed of by a common order.

3. Determination of Passing Off Action:
The plaintiffs claimed that the defendant's use of the trade mark "LIPICOR" amounted to passing off, as it was deceptively similar to their trade mark "LIPICARD". They argued that the similarity could cause confusion among consumers, especially given the context of medicinal products where confusion could have serious health implications.

4. Examination of Proprietary Rights Over the Trade Mark "LIPICARD":
The defendant contended that the plaintiffs were not the proprietors of the trade mark "LIPICARD" and that the term "LIPI" was derived from the generic term "Lipid Correction". They provided evidence of various other companies using the prefix "LIPI" in their pharmaceutical products, arguing that the term was common to the trade and could not be monopolized by the plaintiffs.

5. Consideration of Similarity Between the Trade Marks "LIPICARD" and "LIPICOR":
The court considered several factors, including the nature of the marks, the degree of resemblance, the nature of the goods, the similarity in the nature and performance of the goods, the class of purchasers, the mode of purchasing, and other surrounding circumstances. The court noted that both drugs were lipid-lowering drugs used in cardiac diabetes patients with elevated cholesterol levels and that the prefix "LIPI" was derived from "Lipid", a generic term.

The court also highlighted differences in the features of the two products, such as the composition, packaging, and pricing, concluding that the two products were phonetically, structurally, and visually dissimilar.

6. Evaluation of Balance of Convenience and Inconvenience:
The court emphasized the principle of "balance of inconvenience" over "balance of convenience". Given the significant sales figures of the defendant's product and the fact that both products were launched around the same time, the court found it improper to restrain the defendant from marketing their product under the trade mark "LIPICOR". The court also referenced the Supreme Court's guidelines on the administration of interlocutory remedies, stressing the need to protect both parties' rights and weighing the need for protection against potential injury.

Conclusion:
The court vacated the interim order dated 9th February 2001, dismissing the plaintiffs' application for an ad-interim injunction and allowing the defendant's application for vacation of the injunction. The court's observations were tentative and prima facie, not to be treated as final expressions on the merits of the case.