UNICHEM LABORATORIES (P) LTD., A COMPANY REGISTERED UNDER THE PROVISION OF THE COMPANIES ACT, 1956 REPRESENTED BY ITS COMPANY SECTRETARY MR. SUBHARAMAN Vs. CADILA HEALTHCARE (P) LTD., A COMPANY REGISTERED UNDER UNDER THE PROVISIONS OF THE COMPAN

JUDGEMENT

(1.) THIS revision petition by the defendant before the court below involves the question of jurisdiction to entertain the suit filed by the plaintiff in a passing off action. The objection raised by the defendant as regards want of jurisdiction by the trial Court was negatived by the learned Judge by answering the additional issue No. 1 in favour of the plaintiff. This has led to the present revision by the defendant.

(2.) THE plaintiff went before the trial Court by contending that the plaintiff has been a reputed manufacturer engaged in the business of manufacture and distribution of various health care products including pharmaceutical products and medicaments and one of its pharmaceutical products is being sold under the trade mark LOSACAR since the month of June 1998 and the said product had enjoyed goodwill of all those concerned in the field and more particularly among the Doctors, Chemists, and the consuming public and within a short time, the said product LOSACAR came to be identified with the plaintiffs company and none -else. The plaintiff applied for registration of the said trademark LOSACAR on 28.2.1997, It was also averred in the plaint that plaintiffs product LOSACAR was accepted very well and it is evident from the sales turnover since the date of introduction into the market till 30.9.1998.

(3.) THE petitioners herein being the defendants denied the plaint averments by contending in the written statement among other things that it is a common practice in the pharmaceutical trade to coin trademarks from generic names and the trademark LOSAR is drawn from generic name LOSARTAK POTASIUM and therefore, the defendant made an application for registration of their trademark on 4.3.1997 and it is the case of the defendant that defendant honestly adopted his trademark and there is no question of defendant trying to pass off their goods as and that of goods of the plaintiff as falsely alleged in the plaint. It was also contended that defendant too has its own reputation in the field and it has been manufacturing and selling pharmaceutical products in the factories at Goa, Maharashtra and other places. It is also contended that two trademarks are not deceptively similar and there is no question of any deception or confusion arising from the use of trademark by the defendant because the goods are to be made available on a prescription of a registered medical practitioner. One other contention taken in the written statement was that plaintiff has not averred that plaintiffs products are sold in Bangalore and even the documents which are annexed to the plaint do not give an indication of any sales of plaintiffs products in Bangalore. Therefore, plaintiff on its own standing has no cause of action to file the suit and consequently the Civil Court had no jurisdiction to entertain the suit and plaint will have to be returned to the plaintiff for presentation before the proper Court.