9911796707
TMI Blog1997 (3) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... ate', according to the plaintiffs, is being extensively used by the plaintiffs since as far back as in August 1991. It is stated that the plaintiffs received information around January, 1996 that the defendant has recently introduced in the market a product under the brand name 'zexate' and the only difference between the plaintiff's registered trade mark 'Mexate' and the defendant's trade mark 'zexate' is the letter 'M' replaced by the letter 'Z', and therefore, it is apparent that the defendant had adopted 'zexate' only to take advantage of the goodwill and reputation of the plaintiff's product 'Mexate' which acquired a reputation in the market. (2) According to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awyer which are using the brand names 'Biotrexate' and 'Neotrexate' respectively with the suffix 'trexate' or 'exate' and therefore, the two competing drugs in the present case are neither similar, both visually or phonetically. (4) Section 2(d) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act ) defines the word deceptively similar as which would be deemed to be deceptively similar to Another mark if it so nearly resembles that other mark so as to likely to deceive or cause confusion. For deciding the question of deceptive similarity, the Courts have laid down the following factors to be considered: (A)The nature of the marks, i.e., whether the marks are word marks or lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is the active ingredient used in the product. (6) The product of the plaintiffs and the defendant is used for the treatment of cancer and the said medicinal preparation is prescribed by a physician only after careful examination of the patient and after conducting series of medical tests. The said medicine is a Schedule 'H' drug which is also to be sold by the qualifying dispensing chemist/druggist on production of a prescription of a physician. Both the products of the plaintiffs and the defendant cannot be expected to be sold over the counter as it is a specialised drug for treatment of cancer. (7) According to the decisions laid down by the various Courts, the importance of the prefix of the word should be taken due ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an exclusive monopoly of the respondents and that the cumulative effect of the two words did not produce the same impression. Even phonetically the two marks were held to be not closely similar, In the present case, since the two marks are different as the opening syllables of both the rival mark sare completely different and distinct and the two drugs are Schedule 'H'drugsof a specialised nature which could only be purchased on showing a prescription from a cancer specialist, the two competing trade marks appear to be prima facie entirely different and dissimilar. (8) Considering the overall position and taking into consideration the entire principles and factors laid down for the purpose by the various decisions, as referred ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
