SAMI KHATIB Vs. SEAGULL LABS I PRIVATE LIMITED

JUDGEMENT

(1.) Mr.Sami Khatib (Plaintiff No.1) and Medley Pharmaceuticals Limited, (Plaintiff No.2) have filed this suit for permanent injunction, restraining the defendants (Seagull Labs (I) Pvt.Ltd. and Seagull Pharmaceuticals Pvt.Ltd.) from infringement of the trademark, passing off, rendition of accounts of profits, damages and delivery of the goods.

(2.) The facts alleged are that plaintiff No.1 has been trading in the name and style of M/s.Medley Laboratories. Plaintiff No.2 is a limited company, incorporated under the Companies Act. Plaintiff No.1 is the Chairman and Managing Director of plaintiff No.2. Plaintiff No.1 alleges that he is the proprietor of trademark XYMEX, registered under the Trade & Merchandise Marks Act, 1958 under Number 259627. The said trademark has been renewed and is stated to be valid. Plaintiff No.2 is the permitted user of the said trade mark and has been using the same in relation to pharmaceuticals and medicinal preparations. Since 1976-77, plaintiff No.2 is stated to be continuously and extensively using the trade mark referred to above in relation to pharmaceuticals and medicinal preparations, being a digestive enzyme and tonic. Plaintiff No.2 also made efforts to popularize the same.

(3.) In October 1996, the plaintiffs came to know that defendant No.1 is manufacturing and marketing a vitamin preparation under the trade mark XENEX and is thereby passing off an inferior quality preparation as and for the plaintiffs' well known preparation. A notice was sent to defendant No.1 and the plaintiffs were. called upon to furnish a copy of the latest renewal certificate. It was supplied. Despite that certain frivolous and untenable pleas were taken. It is asserted that defendants' impugned trademark XENEX is visually as well. as phonetically deceptively similar to plaintiffs' registered trademark. Both the trademark begin with the word 'X' and end with the words 'EX'. An ordinary customer can mistake one for the other. It is bound to create confusion. Hence the present suit has been filed.