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TMI Blog1990 (4) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... to June 1986. The Appellate Bench does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiff's case in a passing-off action. It appears to us that it was not an appropriate case where the appellate Bench could have interfered with the discretion exercised by the learned Single, Judge. Allow these appeals - C.A. 1892 OF 1990 - - - Dated:- 26-4-1990 - M Venkatachaliah and N O Verma, JJ. ORDER 1. Appellants in these appeals by Special Leave, are the Defendants in Civil Suit No. 1220 of 1988 on the original side of the High Court of Madras and assail the order dated 19-1-1990 of the Division Bench of the High Court granting in appeal and in reversal of the order dated 2-3-1989 of the learned single Judge trying the suit an injunction restraining appellants from passing-off their medicinal product Cal-De-Ce as that of the Respondent-Plaintiff, Respondent claimed to have acquired a right in that Trade-mark by continuous user. The temporary injunction was refused by the learned Single-Judge. But in appeals, O.S.A. Nos. 111 and 112 of 1989, preferred against the refusal, the division bench granted the temporary injuncti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8-2-1986 with Wander Ltd., was itself void in that its object was one forbidden by law ; that it would, if permitted defeat and violate several statutory provisions and prohibitions, that the agreement thus, out of way, the undertaking furnished on 21st June 1986 by Wander Ltd., to the Drug Controller in Karnataka, had the effect, in law, of and amounted to an abandonment by Wander Ltd., of its proprietorship of the Registered Trade-Mark Cal-De-Ce and all of such exclusive rights as Wander Ltd., had or may have had in respect of that Trade-Mark and that the subsequent continued user of the said Trade-Mark by Antox under the Drug Controller's licence amounted to an independent user of the Trade-Mark by Antox in its own right as, indeed, according to Antox, the said Trade-Mark after its abandonment by Wander Ltd., came to be in an ascent unwonted condition eligible to be picked up and used by any body. It was said that the user of the Trade-Mark by Antox after 21st of June 1986 amounted to such an independent user on the strength of which Antox claimed that it was entitled to maintain a passing off action even against Wander Ltd. The mere earlier registration of the Trade-Mark by Wan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yet to commence his enterprise, are attracted. 6. In the present case, the learned single Judge held that, at all events as between Antox and Wander Ltd. even to the extent considerations relevant for a passing-off action go, the latter was undisputably the earlier user of the Trade-Mark in that Wander Ltd. was manufacturing and marketing the Calcium Glouconate Vitamin Tablets under the Trade-Mark Cal-De-Ce at its own factory in Bombay from August 1983 upto June 1986. If this is correct, Antox's user cannot be held to be prior user. It is pertinent to note, and perhaps emphasise, that the appellate bench did not disturb this finding at all. Learned Single Judge was persuaded to the view that, in any event so far as the prima facie position as to the test of earlier user is concerned Antox could not be held entitled to interlocutory order in its favour on the basis of the earlier user claimed by it. The interlocutory relief was accordingly refused against both Wander and Alfered Berg. 7. Aggrieved by this order of the Trial Judge declining the interlocutory injunction Antox preferred O.S.A. Nos. 111-112 of 1989 before the Division Bench. The Division Bench, however, re-assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the Trial Court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph : ... These principles are well established, but as has been observed by Viscount Simon in Charles Osention Co. v. Johnston the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case. The appellate judgment does not seem to defer to this principle. 10. We may now examine the tenability of the grounds on which a Division Bench reversed the single Judge's refusal. The passing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n his house built in the woods would today be unlikely to find a path beaten to his door in the absence of a costly advertising campaign to acquaint the public with the excellence of his wares" See Erven Warnink B.V. v. J. Towhand Sons (Hull) Ltd. 1979 All E.R. 731. 11. Antox says that it is free from the inhibitions of the terms of the agreement dated 28th March 1986 on the ground that agreement is itself void for all purposes and, therefore, do not attach to or diminish the quality of its user, though commenced under that agreement. Antox says its user is referable to the Drug Controller's licence. But even assuming that the terms of the agreement dated 28th March 1986 are not to be put into the scales to determine the title to and character of the user by Antox, two crucial positions still stage Antox in the face. The first is that the Drug Controller's licence claimed by Antox as the source of its right to the user of the trade-mark, itself expressly stipulates that the goods to be manufactured pursuant to the said licence shall be goods under the registered Trade-mark, of Wander Ltd. The effect of this on the quality of the user has not been examined by the Appellate-Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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