2010 (10) TMI 1171 - HC - Indian Laws

Summary

Issues Involved:
1. Distinctiveness of the Appellants' mark or packaging.
2. Deceptive similarity between the marks NETROMYCIN and NETMICIN.
3. Possibility of confusion among consumers.
4. Essential features comparison of the marks.
5. Adverse effect on consumers due to chemical composition.
6. Commonality of suffixes in pharmaceutical products.
7. Interim injunction and statutory rights of the Respondents.

Summary:

1. Distinctiveness of the Appellants' Mark or Packaging:
The learned Single Judge held that the Appellants failed to prove the distinctiveness of their mark or packaging.

2. Deceptive Similarity Between the Marks:
The learned Single Judge concluded that the two marks, NETROMYCIN and NETMICIN, are not deceptively similar. The Appellants argued that the true test is to compare the marks as a whole, citing Supreme Court cases like Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd. and Corn Products Refining Co. Vs. Shangrila Food Products Ltd. They contended that the learned Judge erred by making a microscopic examination rather than considering the overall similarity.

3. Possibility of Confusion Among Consumers:
The learned Single Judge found no possibility of confusion, noting that the Respondents' goods were purchased in bulk by hospitals and not sold over the counter, whereas the Appellants' goods were sold over the counter. The Appellants argued that this factor should not be considered, referencing the Supreme Court's decision in the Cadila case, which stated that physicians and pharmacists are not immune from mistaking one mark for another.

4. Essential Features Comparison of the Marks:
The learned Single Judge held that the essential features of the Appellants' mark are different from those of the Respondents. The Appellants contended that the similarity of the word marks should be given more weight than the differences in packaging, citing cases like M/s. Girnar Tea Vs. Brooke Bond (India) Ltd.

5. Adverse Effect on Consumers Due to Chemical Composition:
The learned Single Judge noted that there would not be any adverse effect on consumers since the chemicals used in both products are common. The Appellants argued that the similarity in the marks could still lead to confusion, regardless of the chemical composition.

6. Commonality of Suffixes in Pharmaceutical Products:
The learned Single Judge observed that many medicines and pharmaceutical products in the market end with the letters Mycin, Micin, and Cin. The Appellants contended that this argument is irrelevant given the distinctiveness of their mark and the Respondents' mark, both of which are registered.

7. Interim Injunction and Statutory Rights of the Respondents:
The learned Single Judge's order rejecting the Notice of Motion was upheld, noting that the Respondents' trade mark NETMICIN is registered, giving them a statutory right to use it. The court found that both marks were derived from the generic drug name Netilmicin, and no single proprietor can claim absolute monopoly over such a name. The court also noted that the Respondents have been using their trade mark since January 2003 without any injunction.

Conclusion:
The appeal was dismissed, and the interim injunction was denied. The court emphasized that both trade marks are registered and have been used without interruption since 2003, ruling out the possibility of confusion due to the manner in which the drugs are administered and the commonality of the chemical composition. The complaint regarding the product insert was also dismissed as the Respondents had changed its contents. No order as to costs was made.