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2006 (5) TMI 539
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....company constituted under the laws of England having its registered office at London which was formed as a result of the merger of two world renowned pharmaceutical groups, namely, Astra AB incorporated in Sweden and its subsidiary Zeneca Ltd. incorporated in the United Kingdom. It was asserted that pursuant to merger of Astra AB and Zeneca, plaintiff No. 1 became the assignee of registered trade mark 'MERONEM' bearing registration No. 532328 in class 5 in India from Zeneca Limited. Zeneca Ltd. had obtained the registration in its name on 27th June, 1990 which is valid and subsisting till 26th June, 2014 and this was assigned by Zeneca Limited in favor of plaintiff No. 1 by deed of assignment dated 4th January, 2000. It was further stated that another deed of assignment dated 9th August, 2000 was executed by Zeneca Limited to facilitate formal registration of the assignment of several of Zeneca's trade marks including 'MERONEM' and this assignment deed dated 9th August, 2000 along with form TM 24 was lodged with the Registrar of trade mark by letter dated 28th March, 2001 and the application is pending with the trade mark Registry, Bombay. The plaintiff No. 1 th....
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....aintiffs exclusively in India and worldwide. 6. It was asserted that plaintiffs learnt about the launch of the defendant's drug `MEROMER' sometime in early 2005. Medicinal preparation of the defendant was stated to be identical to that of plaintiffs and is sold in India in vials of 500 miligrams and 1 gram. Plaintiffs were emphatic that the composition, dosage and antibacterial spectrum of the plaintiffs product and the defendant's products, sold under their respective mark are also more or less the same/identical. It was categorically pleaded that the stark difference between the drug sold by plaintiffs under the registered trademark 'MERONEM' and the drug sold by the defendant, under the mark 'MEROMER' is that while the plaintiffs drug has been approved for a shelf life of four years, the defendant's drug has been approved for a shelf life of only two years. On the basis of the difference of the shelf life it was contended that there is considerable higher possibility and likelihood of deception and confusion between the drugs sold under the plaintiffs registered trademark 'MERONEM' vis- a-vis the drug sold by the defendant under the mar....
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.....8.2004 in Class 5 and his application after due examination and in accordance with law is stated to have been allowed and a registration certificate dated 1.12.2005 was issued, a copy of which was filed by the defendant during the pendency of the case and consequent to the registration of the trademark of the defendant it has been asserted that the plaintiffs are not entitled for any relief on the basis of infringement of their registered trademark as the mark of the defendant is also registered and the trademark of the defendant shall relate back to the date of application which is prior to the date of institution of the suit. The defendant also contended that since plaintiffs and defendant are both having registered trademarks, the plaintiffs cannot exercise their rights on the basis of registered trademark against the defendant who also owns a registered trademark. It was further pleaded that the registration with respect to the trademark 'MEROMER' was completed on 30.8.2005 even prior to the institution of the suit. The mark of the defendant was stated to have been advertised in trademark journal No. 1328 Supplement 4 dated 28.2.2005 at page 329 and the time prescribed....
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.... that the certificate produced by the plaintiffs show that the mark 'MERONEM' is registered under number 532328 in Class 5 in favor of Zeneca Ltd which is not a party to the proceedings and the search conducted on 30.11.2005 shows that the mark is still registered in the name of Zeneca Ltd and, therefore, the plaintiffs are not the proprietors of the trademark 'MERONEM' and since neither of the plaintiffs are the registered proprietors of the trademark they are not entitled to institute the suit for infringement of the registered trademark. The defendant also highlighted the discrepancies in the statements made on behalf of plaintiffs in their pleadings. It was stated that the plaint is based on the merger of Astra AB incorporated in Sweden with its merger with Zeneca Ltd whereas in another affidavit the plea raised by the plaintiffs is that Astra AB of Sweden merged with Zeneca plc. Zeneca Ltd is not the Zeneca plc and in the pleadings in the plaint no mention of Zeneca plc was made. The assignment deed dated 4.1.2000 produced by the plaintiffs was also contended to be fabricated as assignment deed dated 4.1.2000 shows Zeneca Ltd. as an existing company which could....
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....ber, 2004 and has invested 1.68 crores in setting up the manufacturing unit and the drugs of about 1.5 crores are in the stock to be marketed. The defendant also contended that interim injunction will cause irreparable loss and hardship as defendant is the largest pharmaceutical company in India which commenced business in 1992. The action of the plaintiffs have also been challenged on the ground that the plaintiffs have not taken any action against other persons and companies using the prefix MERO in their trade name and marketing the same drug. 17. I have heard the learned Counsels for the parties, Dr. Singhvi for the plaintiffs and Mr. Sundaram for the defendant, in great details for a number of days. The suit is at a stage when the existence of the rights of the plaintiffs and their violations are contested and uncertain. The rights of the plaintiffs are still to be established after the trial on evidence. Considering the magnitude of the sale of drug of both the parties the Court will have to go by the principle of `balance of inconvenience' which will be who will be more inconvenienced in case the injunction as prayed for by the plaintiff is granted or not granted and ....
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....ontains 45.1 mg of sodium) Shelf life of the product (4 years) -Active ingredient: Meropenem trihydrate equivalent to anhydrous meropenem USP 1 gm/500 mg. -Buffering agent: Sodium Carbonate (100 mg formulation contains 82 mg of sodium) 500 mg formulation contains 41 mg of sodium) Shelf life of the product (2 years). 2. COLOUR COMBINATION: COLOUR COMBINATION: The Plaintiffs vials are sold in also sold in quantity of 500 mg and 1000mg/1gm quantity). The Plaintiffs use a colour combination scheme (of reds and blues) in vial labels and the vial caps.- For their 500 mg vial, the Plaintiffs use a blue and red colour combination scheme, in which blue predominates. -For their 1 gm vial, the Plaintiffs use a red and blue colour combination scheme, in which red predominates. The Defendant vials are the quantity of 500 mg and 1000 mg/1 gm quantity. The defendant also uses colour combination scheme of red and blue in vial labels and vial caps. -For their 1000 mg vial it is blue-red combination-compare-For their 500 mg vial it is red blue combination 3. LABEL BACKGROUND: LABEL BACKGROUND: White White 4. LABEL CONTENTS ....
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....plicant, the Registrar may, after giving notice to the applicant in the prescribed manner, treat the application as abandoned unless it is completed within the time specified in that behalf in the notice. (4) The Registrar may amend the register or a certificate of registration for the purpose of correcting a clerical error or an obvious mistake. 20. Plaintiffs filed their suit on 4th October,2005 on the basis of registration of trademark in favor of plaintiff No. 1 and prior user of plaintiffs, claiming both infringement and passing off by the defendant. According to plaintiffs at the time of filing of the suit, the trade mark of the defendant was not registered and therefore, the plaintiffs shall also be entitled to maintain an action for the infringement of their registered trademark. 21. If according to the provisions of the Trade Marks act, 1999 the registration of the trademark will relate back to the date of the application which is 2nd August, 2004 in the present case, the plea of the plaintiffs that they shall still entitled to maintain the action of infringement of their registered trademark will not sustainable because the trade mark `Meromer' of the defenda....
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....if he were the sole registered proprietor. 23. Therefore the plaintiffs can not contend that they have exclusive and registered trademark against the defendant nor can seek relief against the defendant on the ground that there is infringement of their registered trademark. The plaintiffs will not have a legal rights emanating from infringement of registered trade mark, as one registered trademark is not infringed by another registered trademark. The two marks `Meronem' and `Meromer' having `Mero' as common word will not infringe each other on account of their registration in the present facts and circumstances. The Act specifically enumerates the circumstances when a registered trade mark is not infringed. Section 30 of the Act is as under: 30. Limits on effect of registered trade mark.--(1) Nothing in Section 29 shall be construed as preventing the use of a registered trade mark by any person for the purposes of identifying goods or services as those of the proprietor provided the use-- (a) is in accordance with honest practices in industrial or commercial matters, and (b) is not such as to take unfair advantage of or be detrimental to the disti....
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.... Act which are identical or nearly resemble each other, in exercise of the right to the use of that trade mark given by registration under this Act. (3) Where the goods bearing a registered trade mark are lawfully acquired by a person, the sale of the goods in the market or otherwise dealing in those goods by that person or by a person claiming under or through him is not infringement of a trade by reason only of (a) the registered trade mark having been assigned by the registered proprietor to some other person, after the acquisition of those goods; or (b) the goods having been put on the market under the registered trade mark by the proprietor or with his consent. (4) Sub-section (3) shall not apply where there exists legitimate reasons for the proprietor to oppose further dealings in the goods in particular, where the condition of the goods, has been changed or impaired after they have been put on the market. 24. Section 28(3) and 30(1)(d) deal with the rights of the registered proprietors of similar trade marks and bar action of infringement against each other as their reading show that the proprietor of registered trade mark can not file an infringement action agai....
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....cation was filed before the trade mark registry which was withdrawn and the application thereafter was then filed before the Appellate Board for Intellectual Property which is still pending and consequently the plaintiffs can invoke their registered trade mark. 26. Admittedly the rectification application for the registered trade mark `Meromer' of the defendant was filed after the institution of the present suit. Whether this application could be filed without prima facie satisfaction of the Court about tenability of the plea of the invalidity of the defendant's mark with the Appellate Board or pending adjudication of his plea of invalidity of the defendant's mark, the plaintiffs can enforce their rights for infringement of their trade mark' 27. Since the application for rectification of defendant's mark filed by the plaintiffs is pending, mere pendency of their application will not give any right to the plaintiffs to sustain their action for infringement of their registered trade mark. Mere filing of the application for invalidity of the trade mark of the defendant does not ipso facto results into stay of the registration or putting of any fetters on the ....
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....een abandoned and the court shall proceed with the suit in regard to the other issues in the case. (4) The final order made in any rectification proceedings referred to in Sub- section (1) or Sub-section (2) shall be binding upon the parties and the court shall dispose of the suit conformably to such order in so far as it relates to the issue as to the validity of the registration of the trade mark. (5) The stay of a suit for the infringement of a trade mark under this section shall not preclude the court from making any interlocutory order (including any order granting an injunction directing account to be kept, appointing a receiver or attaching any property), during the period of the stay of the suit. 29. The said provision envisages two eventualities in case the defendant has raised a defense under Section 30 of the Act and the plaintiff has pleaded invalidity of the registration of the defendant's trade mark, one where the application seeking rectification is already pending and the other where the application is to be filed seeking rectification. In the present case the application for rectification is filed after the institution of the suit which fact has not be....
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....atel Field marshal Agencies v. P.M. Diesels Ltd. 1999 IPLR 1425 where it was held that if the proceedings are not pending and the plea regarding invalidity of registration of the mark is raised, the Court trying the suit is to be prima facie satisfied about tenability of the issue. The Division bench of the Gujrat High Court had held: 10. As we notice, under Section 107, it has been provided that on such plea being raised, the plea can be decided only in an appropriate rectification proceedings. In conformity with that provision, Section 111 envisages that if proceeding for rectification of the register in relation to plaintiff or defendant's trademark, as the case may be, are pending before the registrar or the High Court, further proceedings in the suit shall be stayed, until final disposal of rectification proceedings. If proceeding are not pending, and the plea regarding invalidity of registration of concerned mark is raised, the Court trying the suit is to be prima facie satisfied about tenability of the issue, and if it is so satisfied, it shall frame an issue to that effect and adjourn the case for three months, from the date of framing of the issue, in order to enabl....
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....nt suit, no application seeking invalidity of the registration of the defendant's trade mark was pending as the trade mark of the defendant has been registered during the pendency of the suit and the certificate of registration was issued after filing of the suit and therefore, the application for rectification could not be filed prior to the institution of the suit. The plea of the plaintiffs therefore, is that their application for rectification filed before the Appellate Board is maintainable without prima facie satisfaction of the tenability of their plea by the Court. If the application for rectification of the defendant's trade mark is maintainable without prima facie satisfaction of this Court, then this suit is also liable to be stayed as claimed by the plaintiffs under Section 124(b) of the Act, though under Section of 124(5) of the Act, the application for injunction and for vacation or modification of an ex parte order can be considered and decided by this Court. The distinction between Section 124(b)(i) and 124(b)(ii) is on the basis of pendency of the proceedings for rectification of the register and not on the basis of whether the party initiating the proceedi....
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....lso stated to be executed by Zeneca Limited to facilitate formal registration of the assignment of several of Zeneca's trade marks including 'MERONEM' and this assignment deed dated 9th August, 2000 along with form TM 24 was lodged with the Registrar of trade mark by letter dated 28th March, 2001 and the application is pending with the trade mark Registry, Bombay. 34. After the above stated plea in the plaint, in the replies to the applications filed by the defendant and the written statement, it was pleaded by the plaintiffs that the trade mark belonges to Zeneca Ltd. which was wholly owned subsidiary of Zeneca Group PLC. Astra, AB Sweden merged with Zeneca from 6th April,1999 and its name became Astra Zeneca PLC and continued its existence as the same company. Zeneca Ltd. also continued its existence after the merger of Astra Sweden with Zeneca and remained a wholly owned subsidiary of Astra Zeneca Plc. Plaintiff No. 1 stated to be incorporated under the laws of England is wholly owned subsidiary of Astra Zeneca Plc and claims rights in the trade mark `Meronem' by deeds of assignment dated 4th January, 2000 and 9th August,2000 whereby Zeneca Ltd.. assigned its ....
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.... facie it can not be inferred that the application for registration of trade mark on the basis of assignment of the plaintiffs is not pending. Registration/ recordal of the name of the proprietor does not confer title but is merely an evidence of title. The rights in the trademark have come to the plaintiffs on the basis of assignment deeds which cannot be denied, prima facie in the facts and circumstances. Reliance can be placed on Grandlay Electricals (India ) Ltd. and Ors. v. Vidya Batra and Ors. 1998 PTC (18) 646 (Del) and Modi Threads Limited v. Sam Soot Gola Factory and Anr. . The learned judge in M/s Mode Threads (supra) while dealing with the said proposition opined in the following words: It is true that the plaintiff's application for getting transferred the registered trademark in its name in the office of the registrar is a still pending but that does not debar the plaintiff to protect the violation of the aforesaid trademark at the hands of unscrupulous persons by filing an action in court of law for injunction. It is, prima facie, clear to me that during the interregnum period when the application of the plaintiff is Pending for consideration by the registrar o....
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....r generic but on the entire trade mark `Meronem'. Whether the word is generic/public juris/common to the trade is a question of fact and is to be decided on its own facts. According to the plaintiffs only six companies are using the word `Mero' as a part of their trade name of which two are plaintiffs and defendant. The applications of other traders with the prefix Mero in their trade name pending with the trademark registry do not confer any rights capable of protection prior to the registration of the mark and mere presence of marks on the trademark register does not prove user thereof. It was claimed by the plaintiffs that even a generic/descriptive mark can by long user become associated as the trademark of the product with a particular manufacturer and the use of a deceptively similar trademark would cause irreparable loss and injury to the manufacturer concern. Plaintiffs claimed that even if ' Mero ' is held to be a generic word, the injunction cannot be denied to the plaintiff against the defendant as he is using a deceptively similar mark, which is both phonetically and visually similar, to the plaintiffs' mark. The added matter as contended by the defe....
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.... and of course the price as the drug marketed by the defendant is much cheaper. Relying on Section 144 of the Act it was contended that trade practices have also to be taken into consideration. Referring to added material it was pleaded that there is no likelihood of passing off. According to defendant marks `Meronem' and 'Meromer' are not phonetically, visually or in any other manner deceptively similar to each other. The defendant sells the goods in mono cartons whereas plaintiffs sell their goods in beehive cartons of 10 vials. The goods of the plaintiffs are made available to the purchaser in the vials as such without any cartons for the individual vial. Shapes of vials were also stated to be different as plaintiffs' vial is narrow and the defendant's vial is broad and from the bottom tapers towards the neck. Colures used on different vials were also stated to be different as well as the style of writing. The goods of the plaintiffs and defendant are schedule `H' drug and are sold on prescription and therefore the confusion between the two trademarks is almost none. The defendant highlighted the difference in price of the products of the plaintiffs and t....
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....fs be dismissed. 42. The counsels for both sides have referred to and relied on various observations of the decision of the Apex Court in case of Cadila Health Care Ltd. (supra). The Supreme Court dealt with passing off of medicinal preparation and drugs in this case. Principles laid down by the Apex Court exhaustively deal with the passing off the drugs and therefore this judgment is very relevant. Following factors are relevant for consideration while dealing with an action for passing off of similar trade marks for drugs and medicine: (1) The nature of the marks i.e. whether the marks are word marks of label marks or composite marks, i.e. both words and lable marks. (2) The degree or resembleness between the marks, phonetically similar and hence similar in idea. (3) The nature of the goods in respect of which they are used as trade marks. (4) The similarity in the nature, character and performance of the goods of the rival traders. (5) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. (6) The mode of....
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....othing the frailty of human nature and the pressures placed by society on doctors, there should be as many clear indicators as possible to distinguish two medicinal products from each other. It is not uncommon that in hospital, drugs can be requested verbally and/or under critical/pressure situations. Many patients may be elderly, infirm or illiterate. They may not be in a position to differentiate between the medicine prescribed and bought which is ultimately handed over to them. (v) While dealing with cases relating to passing off, one of the important tests which was to be applied in each case is whether the misrepresentation made by the defendant is of such a nature as is likely to cause an ordinary consumer to confuse one product or another due to similarity or marks and other surrounding factors. What is likely to cause confusion would vary from case to case. 44. While confusion in the case of non-medicinal products may only cause economic loss, confusion between the two medicinal products may have disastrous effects on health and life. Stringent measures should be adopted especially where medicines are the medicines of last resort as any confusion in such medicines may....
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....many electronic goods which daily come to the market, no one can claim monopoly over the use of the said word. Anyone producing any product with the use of micro- chip technology would be justified in using the said word as a prefix to his trade name. What is further, those who are familiar with the use of electronic goods know fully well and are not likely to be misguided or confused merely by, the prefix 'micro' in the trade name. Once, therefore, it is held that the word 'micro' is a common or general name descriptive of the products which are sold or of the technology by which the products are manufactured, and the users of such products are, therefore, not likely to be misguided or confused by the said word, the only question which has to be prima facie decided at this stage is whether the words 'tel' and 'nix' in the trade names of the appellant and the respondent are deceptive for the buyers and users and are likely to misguide or confuse them in purchasing one for the other. According to us, phonetically the words being totally dissimilar are not going to create any such confusion in the mind of the users. After comparing added information....
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....nd Co. (P) Ltd., the Apex Court had considered `Dropovit' and `Protovit' holding that `Vit' indicated that the goods were Vitamin preparation and terminable syllable is both descriptive and common. Paying greater regard to the uncommon elements, it was held that it is difficult that one will be mistaken for or confused with the other. The letters 'D' and 'P' in 'Dropovit' and the corresponding letters 'P' and 'T' in 'Protovit' cannot possibly be slurred over in pronunciation and the words are so dissimilar that there is no reasonable probability of confusion between the words either from the visual or phonetic point of view. The Supreme Court had held: 8. In order to decide whether the word 'Dropovit' is deceptively similar to the word 'Protovit' each of the two words must, therefore, be taken as a whole word. Each of the two words consists of eight letters, the last three letters are common, and in the uncommon part the first two are consonants, the next is the same vowel 'O', the next is a consonant and the fifth is again a common vowel 'O'. The combined effect is to produce an allitera....
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....on practice to name a drug by the name of the organ or ailment which it treats or the main ingredient of the drug. Such organ, ailment or ingredient being publici Jurisdiction or generic cannot be owned by anyone for use as trade mark; (4) Whether such feature is publici Jurisdiction or geric is a question of fact; (5) If the two trade marks by two competing traders use a generic word or an expression publici Jurisdiction common to both the trade marks it has to be seen if the customers who purchase the goods would be guided by the use of such word or expression or would ignore it and give emphasis to prefixes or suffixes or words used in association therewith. The primary question to be asked is What would remain in the memory of customer' The surrounding circumstances such as the presentation of goods, colour scheme and lettering style etc. used on the packing also assume significance. 51. The name `Mero' is from the common name of the drug, Meropenem and the defendant and the plaintiffs both can not claim exclusive right to the same. The non descriptive words `Nem' and `Mer' of the two trade names are distinct. This distinction coupled with others, colour sche....
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....vratis AG v. Wanbury Ltd. and Anr. inferring that Coriminic viz a viz Triaminic/Triominic are quite dissimilar and distinquishable and Kaviraj Pandit Durga Dutt Sharma v. Navratna Pharmaceuticals Laboratories finding Navaratna and Navaratna Kalpa different and dissimilar. 54. The plaintiffs have tried to distinguish the case of Liv-52 (supra) on the ground that in that case it was found that about hundred drugs in the market were using the abbreviation `Liv' from liver, an organ of human body as constituent of names of medicinal preparations meant for treatment of ailments and diseases associated with liver where as in the case of plaintiffs there are only six companies, two of which are plaintiffs and defendant. Regarding 30 to 35 applications, contended by the defendant with the registrar of trademarks with the prefix `Mero' , plaintiffs stated that the presence of a mark on the register does not prove its user and consequently the plea of the defendant that `Mero' is commonly used in the trade is not sustainable. 55. This submission of the plaintiffs is based on their own assumption. At the interim stage 30 to 35 application with the registrar of trademarks wit....
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.... about the interference in the appeal arising out of discretionary order of the temporary injunction, it was held that the interference in appeal will be called for only if the conclusion reached is that the exercise of discretion by the trial judge was contrary to the settled principles for the grant of temporary injunction or that it is arbitrary or perverse. Similarly in the , Glaxo Smithkline Pharmaceuticals Ltd. and Anr. v. Naval Kishore Goyal and ors the defendant's proposed trade mark had not been published and therefore at the threshold and a preliminary stage of a suit, the holder of registered trade mark was accorded jural protection. In , Sanat Products Ltd. v. Glade Drugs and Nutraceuticals Pvt. Ltd. and anr the drugs `REFORM' and `REFIRM' were found to be deceptively similar but these names did not have any common prefixes based on some ailment, organ of the body or on the name of common medicine in contradistinction to the present case. The case of the SPOXIN and SUPAXI, 2002 (25) PTC 592 (Bom) (DB) is also clearly distinguishable on the same principle and does not support the contentions of the plaintiffs. These two trade marks were deceptively similar bu....
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....ther the shelf life of plaintiffs product is four years or two years in case of defendant, before administration by the qualified personals, the date of expiry will be checked and therefore it cannot be inferred that on account of difference in shelf life between the products of the plaintiffs and the defendant, will cause disastrous results or confusion which will result in loss of life or other serious health hazard. 58. Considering the averments made by the parties, it is difficult to infer at this stage that the adoption of the trademark` Meromer' by the defendant is with the intention to pass off his product as that of plaintiffs. The defendant has spent considerable amount in setting up the plant. The plaintiff was not the first to adopt and use the prefix ' MERO ' as trademark MEROCEL was registered in favor of M/s Merrel Dow Pharmaceuticals Inc. No. 2110 East Galiraith Raod, Cincinnati, Ohio, U.S.A which fact can not be denied by the plaintiffs. There are other companies marketing the same drug, Meropenem, with the trade names having prefix `Mero'. Perusal of the plaint also reveals that the plaintiffs did not make any averment regarding trans border repu....