GLAXO INDIA LIMITED Vs. EUDORA LABORATORIES PRIVATE LIMITED

JUDGEMENT

(1.) Heard learned counsel for the parties at length on the application.

(2.) Two crucial questions arise in this matter and they are as under:-

(3.) The case of the plaintiff is that the plaintiff adopted the trade mark `ZUPAR' in the year 1986 in respect of pharmaceutical, medicinal, veterinary preparations and sanitary substances. On 6th January, 1987, the plaintiff moved an application for registration and the said trade mark was duly registered under No. 465638 as of 6th January, 1987 in Class 5 in respect of pharmaceutical, medicinal, veterinary preparations and sanitary substances. The said product `ZUPAR' is used in tablet form for the purpose of high fever. The product is being used in a distinctive packing material and strip. The plaintiff has spent considerable amounts by way of promotion, expenditure for popularising the said trade mark `ZUPAR'. The said trade mark acquired a distinctive connotation as being exclusively related to the goods of the plaintiff. During the first week of July 1996, the plaintiff came to know that the defendants are selling the pharmaceutical products under the trade mark `BUPAR' for the same treatment. The plaintiff served a notice dated 25th July, 1996 to the defendants to desist from manufacturing, selling and advertising the said product under the trade mark `BUPAR'. But the defendants refused to comply the requirements of the notice dated 25th July, 1996. The adoption of the trade mark `BUPAR' by the defendants is visually and phonetically deceptively similar to the registered trade mark `ZUPAR' of the plaintiff in respect of the similar drug. Thus, the defendants are infringing the trade mark of the plaintiff. The trade mark `BUPAR' is not registered. The defendants have only filed an application for registration. Defendant No. 1 filed a suit before the Civil Judge, Varanasi being Suit No. 811/96 under Section 120 of the Trade and Merchandise Marks Act, 1958 and that plaint was returned since the said suit was not maintainable. The defendant No. 1 thereafter filed a fresh suit before the District Judge, Varanasi for the same prayer. By filing the present suit, the said suit filed in the Court of District Judge, Varanasi has become infructuous. It is claimed that the plaintiff would suffer irreparable loss in case the injunction is not granted in respect of the plaintiff's trade mark No. 465638 `ZUPAR'. From the side of the defendants, Sh. Ajay Sahni, Advocate appeared and argued the matter. In view of the urgency of the matter and seeing that at initial stages injunction was not granted, time to file reply was not given to avoid any deprivation of the plaintiff's right to get ad interim injunction.