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TMI Blog2003 (7) TMI 722X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the learned Senior Counsel for the applicant, Mr. P. Chidambaram, the words PIO and PIOZ have hardly any difference. The applicant had prior user, so the respondent must be injuncted from using the word PIO. The order dated 26-06-2002 in Application No. 230 of 2002 in C.S. No. 234 of 2002 was produced. The same applicant had obtained an injunction against another person who marketed the medicine under the name PIOZED. The learned Senior Counsel would submit that the decision in the other case applies to the present one. After the injunction was granted against use of the trademark PIOZED the parties entered into, a compromise. The defendant in that suit agreed to amend its trademark from PIOZED to PIOMED. According to the learned Senior Counsel the respondent herein should also amend its mark so that it is distinct from the applicant's. 4. He submitted that Cadila Healthcare Ltd. v. Cadila Pharmaceutical Ltd., squarely applies to this case. Himachal Pradesh Horticulture Produce Marketing and Processing Corporation Ltd. v. Mohan Meakin Breweries Limited, was relied on to show that in a suit for passing off, the cause of action will arise if the respondent is proved to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both are prescribed for diabetes and contain the same ingredients. He also submitted that the balance of convenience is not in favour of granting injunction. Section 20, CPC has no applicability in the present case, since Section 120 of the Code of Civil Procedure provides that Section 20 is inapplicable to suits filed under the Original Side of the High Court. He referred to the Madras High Court O.S. Rules and to show that unless leave was granted the applicant cannot sue the first defendant. He further submitted that the address for service on the applicant was not the registered address of the applicant and in fact, the applicant does not carry on business at the address given in the plaint. The applicant had knowingly and deliberately given a false address as the address of the first defendant. According to the learned Senior Counsel the consignee agent known as Pride Remedies carrying on business at the address given in the plaint as the first respondent's address, markets not only the respondent's products but also the applicant's products and various other pharmaceutical products. By no stretch of imagination can that the address be said to be the address of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business. 9. In this case, the applicant has given the address of the 1st respondent as Sys-topic Laboratories Limited, N. First Stree, Railway Colony, Mehta Nagar, Chennai-29 represented by its Director. The long cause title states that the first defendant is a Company incorporated under the Companies Act, 1956 having its office at the same address. It is admittedly the address of one Pride Remedies . The applicant definitely knew that this was not the registered address of the first respondent. The sale of the respondent's product was taking place at Chennai on a commercial scale. Therefore, the applicant would have had no difficulty in obtaining leave to sue the respondents 1 and 2. But for reasons best known to the applicant, the' applicant obtained leave to sue the second defendant alone stating that the first defendant was having its address within the jurisdiction of this Court. The learned Senior counsel for the applicant would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the address for service on a Corporation cannot be just any place where the products of the defendant are sold but the registered address of the Company or it may be served in the manner laid down in Order 29. 12. In (cited supra) that case, the summons was served on an employee who was an Office Assistant sitting in the registered office of the Company. Even though it was served at the registered address it was held to be not an valid service of summons. This is referred only to show the importance of proper service of summons. The fact that Pride Remedies had received the notice calling itself as the Commission Agent will not help the applicant. The verification of pleadings by the Manager (Legal) that this information given is true to his knowledge, information and belief is difficult to accept. 13. If the stand of the applicant is to be accepted, then the big soap and detergent giants whose products are sold all over the country may be sued at the address of any little grocery shop in any small village in this vast country. Merely because the proceedings do not arise under the Companies Act, the applicant cannot be excused for not giving the registered office of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. Now (sic) come to the merits of the case. The cartons of the applicant and the respondent's products are not identical. The copy of the Indian Drug Report would show that most of the drugs which use the chemical pioglitazone hydrochloride use the word PIO and the list of those drugs have also been enclosed in the typed set filed by the respondent. It has been held that it is not a defence in a passing off action to state that other medicine manufacturing companies are using similar sounding words and no action has been taken against them. 17. In fact in Indian Shaving Products Ltd. and Anr. v. Gift Pack and Anr., 2000 CLC 183 : 1998 PTC (18) 698 (Del) the Delhi High Court held that the allegation that some other manufacturers are also using the said trademark, is not available to the defendants as the Court is concerned with the parties concerned before it only. However, the reference to the other companies using the similar name is referred to only for the purpose of showing that the word PIO is indicative of the basic ingredient and it cannot be said to belong to the applicant alone. In fact the applicant had himself stated in the counter filed in the other suit whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng off is alleged is meant for curing the name ailment but the compositions are different. In the present case, admittedly the medicinal products of the two parties are marketed in the same two strengths viz. 15mg and 30mg. Both contain Pioglitazone Hydrochloride. 19. Several judgments were cited to show how Courts have dealt with applications under Order 39, Rules 1 and 2, CPC in passing off action. The drugs were Dropvit and Protovit, Nimulid and Remulide, Rechlor and Curechlor, Dispirin and Medisprin, Sorbilene and Sorbitone, Mexate and Zexate, Lipicard and Lipicor, Menscure and Mensurol, Liv-52 and Liv-T, Micronix and Microtel, Cera and Re cera vitreous. In the Lipicor case the applicant pressed into use the judgment of the Supreme Court in Cadila case, and the learned Judge of the Delhi High Court deduced some principles as the tests for deciding a passing off action in medicinal problems which may not be applicable in non-medicinal problems. When the drugs have completely different side effects the tests should be applied strictly and the Courts need to be particularly vigilant. Even if both drugs are sold under prescription, strict measures to prevent confusion arising fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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