HOECHST AG Vs. UNISULE PRIVATE LIMITED

JUDGEMENT

(1.) The plaintiffs, named above, have filed the present suit for permanent injunction, restraining infringment of trade mark, copy right passing off, delivery of infringed goods and damages etc. against the defendant. The case of the plaintiffs, in brief, is that plaintiff No.1 and 2 are Joint Stock Companies, organised and existing according to the laws of Germany, carrying on business inter- alia as manufacturers of pharmaceutical and medicinal preparations. Plaintiff No.3 is a Company, incorporated in India under the Comapnies Act, 1956 carrying on inter-alia the business as manufacturers of pharmaceutical and medicinal preparations. The defendant is a firm too carrying on inter- alia the business as manufacturers of pharmaceutical and medicinal preparations. It is alleged that plaintiff No.1 on 9.1.1961 applied for and obtained registration of the mark "BARALGAN" ( word per se ) under No. 200032 in respect of pharmaceutical products falling in Class 5 of the Fourth Schedule to the Trade and Merchandise Marks Rules, 1959. The registration of the said mark is valid and subsisting. It is further alleged that on 4th July, 1989 plaintiff No.2 applied for the registration of trade mark comprising the words Cassella-Med & Device of Two Bands ( hereinafter referred to as the said devise) under No. 512886 and the said application is still pending for registration. It is alleged that plaintiff No.1 and 2 have allowed plaintiff No.3 to use the above referred trade marks in respect of the goods manufactured by plaintiff No.3 in India under strict supervision and control and according to the standards and specifcations prescribed in that behalf by plaintiff No.l and 2 respectively. Thus, plaintiff No.3 is a Registered User of the said Trade Mark "BARALGAN' and a licensed User of the said device

(2.) It is alleged that plaintiff No.3 has been manufacturing and selling the said product 'BARALGAN' since 1967 in India in strips and carton, having a distinctive colour scheme a get up which is also an original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957. The plaintiffs are therefore the only persons entitled to reproduce the same.

(3.) It is averred that plaintiff No.3 has spent considerable amount by way of promotional expenditure for popularising the said trade marks and by reason of extensive publicity and use of the said trade mark carried out as aforesaid the trade marks have come to be associated by the traders and the members of the public exclusively with the plaintiffs. It is therefore, the case of the plaintiffs that by reason of the aforesaid registration the plaintiffs alone are entitled to use the said trade marks in India.