CADILA LABORATORIES LIMITED Vs. DABUR INDIA LIMITED

JUDGEMENT

(1.) According to the plaintiffs, in the year 1989, the first plaintiff coined a unique and unusual trade mark 'Mexate' in respect of its methotrexate sodium injections used in the treatment of various types of cancers. According to the plaintiffs, the said trade mark is an invented word of the first plaintiff and has no meaning whatsoever. It is stated that the plaintiff No.l is also a registered proprietor of the said trade mark 'Mexate' having been granted registration on 5.12.1989 and registered in Class V. The trade mark 'Mexate', according to the plaintiffs, is being extensively used by the plaintiffs since as far back as in August 1991. It is stated that the plaintiffs received information around January, 1996 that the defendant has recently introduced in the market a product under the brand name 'zexate' and the only difference between the plaintiff's registered trade mark 'Mexate' and the defendant's trade mark 'zexate' is the letter 'M' replaced by the letter 'Z', and therefore, it is apparent that the defendant had adopted 'zexate' only to take advantage of the goodwill and reputation of the plaintiff's product 'Mexate' which acquired a reputation in the market.

(2.) According to the plaintiffs, the trade mark 'zexate' of the defendant is deceptively and confusingly similar to the plaintiff's registered trademark 'Mexate'. Mr. Lal, the Counsel appearing for the plaintiffs submitted that the defendant's trade mark is phonetically, visually and structurally identical to the first plaintiff's registered mark 'Mexate' and use of the same by the defendant amounts to a violation of the statutory rights which exist in favour of the first plaintiff.

(3.) Mr. Anand, the Counsel appearing for the defendant, on the other hand, submitted that the claim of the plaintiff's amark 'Mexate' is coined, invented, unique and unusual is baseless. It is stated that the defendant is a reputed manufacturer of pharmaceuticals amongs to ther products and adopted the mark 'zexate' in the year 1995whichalsocontainsmethotrexatesodiumastheactiveingredientandisadrug for treatment of cancer disease. It is stated that the suffix 'exate' is common to both the plaintiff's and the defendant's marks which is the base product and the same constitutes5/6thoftheentire mark. Itis stated that while the plaintiffs have chosen to add 'M' to have their brand read as 'Mexate', the defendant has independently opted for "Z.' which is a highly distinct letter amongst all the syllables of English language. Besides,thereareotherpharmaceuticalcompanies,namely,M/s.Biochem Industries, Bombay and M/s. Biddle Sawyer which are using the brand names 'Biotrexate' and 'Neotrexate' respectively with the suffix 'trexate' or 'exate' and therefore, the two competing drugs in the present case are neither similar, both visually or phonetically.