MERCK KGAA Vs. GALAXY HOMPRO

JUDGEMENT

(1.) CM. No. 4285/2011

(2.) In this writ petition under Article 226 of the Constitution of India, the petitioner assails the order dated 12.06.2009 passed by the Intellectual Property Appellate Board (IPAB) bearing order No. 94/2009 whereby the petitioner's appeal against the order dated 28.06.2001 passed by the Assistant Registrar of Trade Marks, disallowing the petitioner's opposition No. DEL-8313, and allowing the respondent's application No. 517814 for registration of Trademark in Class 5 under the provisions of the Trade and Merchandise Marks Act, 1958, has been dismissed.

(3.) The petitioner claims to be in the business of manufacture and sale of pharmaceutical drugs formulations. The case of the petitioner is that it is producing and marketing various drugs with the suffix 'BION'. The respondent is also in the same trade. The respondent advertised for registration of the mark 'RECIBION' on 03.10.1989. It claims user since 01.04.1987. When the petitioner noticed the said advertisement, the petitioner filed an application to raise objections. The petitioner claims that it had got registered various marks such as BETABION, POLYBION, CEBION etc. with the Registrar of Trade Marks which were pharmaceutical preparations. It is claimed by the petitioner that the trade mark sought to be registered by the respondent i.e., RECIBION in respect of a medicinal and pharmaceutical preparation is deceptively similar to its mark 'CEBION' which also contains the suffix 'BION' with which the petitioner's products are identified.