BIOFARMA Vs. SANJAY MEDICAL STORE

JUDGEMENT

(1.) In the suit instituted by the plaintiffs praying for a permanent injunction restraining the.defendants, their servants, agents, dealers and stockists from using the trade mark 'trivedon' or any other trade mark which isstated to bedeceptively similar with the trade mark 'flavedon' of the plaintiffs and for infringement of trade mark and passing offdamages. The plaintiffs also filed an application under Order 39 Rules I and 2 of the Civil Procedure Code praying for grant of a temporary injunction against the defendants from manufacturing and selling, offering for sale medicinal preparations and pharmaceuticals under the trade mark 'trivedon' or any other trade mark which is deceptively similar with the trade mark of the plaintiff's 'flavedon'. The aforesaid application was registered as IA 11683/ 95. The defendants have filed their written statement as against the suit instituted by the plaintiffs and have also filed reply to the application. The said application was set out for hearing before me on which I have heard the learned Counsel appearing for the parties and accordingly, I propose to dispose of the said application by the present order.

(2.) According to the plaintiffs, the trade mark 'flavedon' is a registered trade mark of the plaintiff No. 1 in India having been so registered under No. 337006 dated 30.5.1978 in Class 5 in respect of pharmaceutical preparation and substance. The aforesaid registration of trade mark is stated to be in force and stands renewed from time to time. In view of the aforesaid registration in their favour and by virtue of use, the plaintiff No. 1 is exclusively entitled to use the said trade mark 'flavedon' in relation to the goods for which it is registered. The plaintiff No. 1 has allowed plaintiff No. 2 to use the abovesaid trade mark in respect of the goods under register user agreement in pursuance of which the plaintiff No. 2 has been manufacturing and selling the said product 'flavedon' in respect of the abovesaid goods which are prescribed for heart ailments.

(3.) The product under the trade mark 'flavedon' is the largest prescribed drug in the French market and the same was introduced in India for the first time in the year 1987. It is stated that the plaintiff No. 1 has also spent considerable amount by way of promotion expenditure for popularising the said trade mark. As a result of intrinsic good quality of the productmarketed, sold and dealt with by the plaintiffs, the product under the said trade mark 'flavedon' have acquired a unique and enviable reputation and exclusive goodwill.