GLENMARK PHARMACEUTICALS LTD. Vs. BAL PHARMA LTD.

JUDGEMENT

(1.) APPEAL arising out of the order dated 05.01.2007 passed by the Deputy Registrar of Trade marks dismissing the opposition No. MAS -164028 and allowing application No. 105772B in class 5 to proceed to registration under the provisions of the Trade Marks Act, 1999 (in short the Act).

(2.) THE first respondent on 9.11.2001 filed an application for registration of the trade mark 'Candizole' (word per se) in class 05 under application No. 105772B claiming user since 01.01.2000. The said application was advertised in the Trade marks Journal Mega 2 dated 25.09.2003 at page 780 and the same was made available to the public on 02.12.2003. The appellant herein filed their notice of opposition on 25.02.2004 and the first respondent herein filed their counter statement on 07.05.2004. On completion of the formal procedures, the matter was heard by the Deputy Registrar and order was passed on the finding that the rival marks on comparison as a whole are phonetically, visually and structurally wide apart and cannot be held to be deceptively similar within the meaning of Section 2(1)(h) of the Act. Section 11 read with Section 12 of the Act is not maintainable as there is no possibility of confusion and deception when the rival marks are not deceptively similar. Adoption of the trade mark 'Candizole' is honest and bonafide and has been adopted without any reference to any other trade mark. The first respondent is entitled to registration within the meaning of Section 18(1) of the Act. The prefix 'Candid' is common for similar products and the appellant cannot claim exclusive right over the word. The opposition has been filed only to delay the registration proceedings.

(3.) THE facts of the case are: