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TMI Blog2004 (5) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Bench has concluded that the Respondents were first to adopt the mark. If that be so then no fault can be found with the conclusion drawn by the Division Bench. However, it was submitted on behalf of the Appellants that the Respondents were not the first to use the mark. It was submitted that there was no proof that the Respondents had adopted the mark and used the mark before the Appellants started using the mark in India. In our view, these are matters which would require examination on evidence. Considering the fact that for all these years, because of the injunction Order, the Appellants have sold their product under some other name, the balance of convenience is that the injunction order be continued and the hearing of the Suit be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration in Australia, Bolivia, Ecuador, Mexico, Peru, South Africa, Canada and the United States of America. They claimed that they had also applied for registration of the mark in several other countries including India and that their applications were pending. The Appellants were selling "OCUFLOX" on a medicinal preparation containing CIPROFLOXACIN HCL to be used for the treatment of the eye and the ear. They claim that they coined the word "OCUFLOX" by taking the prefix "OCU" from "OCULAR" and "FLOX" from "CIPROFLOXACIN" which is the basic constituent of their product. The Appellants were granted registration by the Food and Drug Control Administration on 25th August, 1993. They have also applied for registration of the mark OCUFLO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mark "Whirlpool" gave an indication of the origin of the goods as emanating from or relating to the Whirlpool Corporation. It was held that an injunction was a relief in equity and was based on equitable principles. It was held that the equity required that an injunction be granted in favour of the Whirlpool Corporation. It was held that the refusal of an injunction could cause irreparable injury to the reputation of the Whirlpool Corporation, whereas grant of an injunction would cause no significant injury to the Appellants who could sell their washing machines merely by removing a small label bearing the name "Whirlpool". In the case of Cadila Health Care Ltd. vs. Cadila Pharmaceuticals Ltd. reported in 2001 PTC 300 (SC), the questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... han that in confusion over ordinary consumer products. It was held that even though certain products may not be sold across the counter, nevertheless it was not uncommon that because of lack of competence or otherwise that mistakes arise specially where the trade marks are deceptively similar. It was held that confusion and mistakes could arise even for prescription drugs where the similar goods are marketed under marks which looked alike and sound alike. It was held that physicians are not immune from confusion or mistake. It was held that it was common knowledge that many prescriptions are telephoned to the pharmacists and others are handwritten, and frequently the handwriting is not legible. It was held that these facts enhance the chanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver one note of caution must be expressed. Multinational corporations, who have no intention of coming to India or introducing their product in India should not be allowed to throttle an Indian Company by not permitting it to sell a product in India, if the Indian Company has genuinely adopted the mark and developed the product and is first in the market. Thus the ultimate test should be who is first in the market. In the present case, the marks are the same. They are in respect of pharmaceutical products. The mere fact that the Respondents have not been using the mark in India would be irrelevant if they were first in the world market. The Division Bench had relied upon material which prima-facie shows that the Respondents product was ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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