9911796707
TMI Blog1998 (7) TMI 716X X X X Extracts X X X X X X X X Extracts X X X X ..... pal Pharmaceuticals Ltd., plaintiff/respondent, inter alia, alleging that it is an established company engaged in the business of manufacturing and marketing of medicinal and pharmaceutical preparations. Plaintiff adopted the trade mark SEFLOX on April 1,1990 in respect of one of its pharmaceutical preparations and has been continuously suing it upto this time. Plaintiff widely advertised the said trade mark through different media. It has now become distinctive and associated with the plaintiff on account of long, extensive and exclusive user thereof. In order to acquire statutory rights of the said trade mark plaintiff filed an application in the office of Trade Marks Registry at New Delhi for its registration under No.589743 in class 5 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iff. It is alleged that the defendant coined and adopted the trade mark SEFLOX in 1991. On December 13, 1991 defendant applied for registration of the said trade mark in its name by filing application which was numbered as 563781 and is pending before the Registrar of Trade Marks. On January 23, 1992 defendant was issued a drug manufacturing licence bearing No. 980/AP for various pharmaceutical preparations including SEFLOX. It is further alleged that the defendant has been selling the pharmaceutical preparations under the aforesaid trade mark since August 1992. In the month of March 1993 when the defendant came to know that the plaintiff is also manufacturing and selling its product under the above trade mark it contacted the plaintiff and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amounting to the passing off the plaintiff's goods for those of the defendant. 6. Needless to say that the plaintiff filed replies to both the said I.As.12447/95 and 12451/95 and the written statement to the counter-claim preferred by the defendant. 7. Through the impugned order plaintiff's application was allowed and those of defendant's were dismissed. Appeals are by the defendant. 8. We have heard the learned counsel of the parties and have also been taken through the record. 9. In both the appeals controversy centres around the fact as to which of the two parties is entitled to use the trade mark SEFLOX. Indisputably both the defendant/appellant and plaintiff/respondent do not have a regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r therein words - proposed to be used - are written. Application dated August 10, 1995 was filed seeking amendment in the column of user to read as 'from 1-4-1990' instead of 'proposed to be used' in the said application. In the letter dated April 4, 1990 ₹ 1500/- have been shown as charges for registration of the trade mark SEFLOX claimed by Acme Company from the plaintiff. 11. As against this, defendant has filed the photostat copy of the renewed drug licence issued by the Drug Controller, Hyderabad dated September 1, 1994, statements showing annual sales figures of SEFLOX tablets for the years 1992 to 1995 in addition to first batch sheet pertaining to medicine SEFLOX dated August 18, 1992 and sales invoice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the plaint. On the other hand, use of trade mark SEFLOX by the defendant since August 1992 is prima facie established by the documentary evidence mentioned above filed by the defendant. In the impugned order the learned single Judge has held that the defendant cannot rely upon the prior user of the said trade mark to non-suit the plaintiff and the plaintiff is entitled to the injunction sought for because of its having invented the word SEFLOX. In our opinion, approach of the learned single Judge on the matter is contrary to the well established principle of law that no injunction can be issued against a prior user of the trade mark in a passing off action. Common law of passing off does not recognise a proprietary right of any kind whats ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defendant who is in prior user, has prima facie made out case for grant of the ad interim injunction sought for. Non-grant of the interim injunction is likely to cause irreparable injury to the defendant, Balance of convenience also lies in defendant's favour. There cannot be any dispute as regards the law laid down in the decisions in S.Pillay Another Vs. G.S.T.Shaik Thumby Sahib, AIR 1940 Rangoon 113, American Home Products Corporation Vs. Mac Laboratories Pvt. Ltd. Another, , J.B. Williams Company Vs. H.Bronnley Co. Ltd., 1909 RPC 765, First Computers Vs. A.Guruprasad, 1996 (16) PTC 27 and Bank of Maharashtra Vs. Race Shipping Transport Co. Pvt. Ltd. Another, , relied on behalf of the plaintiff but the same are of on he ..... X X X X Extracts X X X X X X X X Extracts X X X X
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