HAMDARD NATIONAL FOUNDATION Vs. ABDUL JALIL

JUDGEMENT

(1.) The plaintiffs, in this suit seek a permanent injunction restraining the defendants from infringing their trademark, copyright and for restraining them from passing off their goods as those of the plaintiffs'. The plaintiffs also seek an order for rendition of accounts and delivery up of goods. By this application I.A. 7385/2004, an ad interim injunction to restrain the defendant from using the plaintiff's trademark in the word HAMDARD and the visual mark associated with it, is sought. The court had, by ex parte orders, granted the injunction. This order proposes to dispose of that interim application.

(2.) The first plaintiff is a charitable institution registered under the Societies Act, 1860, whereas the second plaintiff is a wakf, having its office in Delhi. It is averred that both the plaintiffs are part of the Hamdard Group, which is involved in the practice, and manufacture of Unani medicines. It is averred that they have been using the mark 'Hamdard Dawakhana' since 1906. The first plaintiff is the proprietor of the mark 'Hamdard', and it has been put to use in respect of an entire range of goods and services offered by the Hamdard Group. The plaintiffs trace the establishment of the HAMDARD group to a small clinic, by Hakeem Hafiz Abdul Majeed, in 1906, which acquired considerable reputation resulting in its conversion into a charitable trust, in 1948, through the second plaintiff. The second plaintiff engages itself in a whole range of activities, and uses modern analytical techniques and scientific methods of assessment and quality control of its products to ensure uniform quality and efficacy of its medicines. It is alleged that the to achieve the objectives of the group more effectively, the first plaintiff foundation was formed in 1964.

(3.) The plaintiffs contend that the ownership and proprietorship of the mark HAMDARD is used conspicuously in relation to their products. This mark is widely recognized as the house mark of the HAMDARD group; the plaintiffs are owners of marks such as HAMDARD EYE DESIGN, HAMDARD BALM, HAMDARD MANJAN, HAMDARD HAJLAN, HAMDARD MARHAM, HAMDARD GRIPE WATER and other label as well as device marks. The first plaintiff has permitted the use of its marks, through deeds of assignment, to the second plaintiff. The second plaintiff thus uses and markets its products under the HAMDARD banner, in respect of its ROOH AFZA, SUALIN, SAFI, CINKARA, NAUNIHAL, PACHNOL, GOGHAN BADAM SHIRIN, HOSHINA, HAMDARD GRIPE WATER brands. The plaintiff's "EYE DESIGN" was first used in 1958, and continued in use, till it was altered in 1968; in its altered form it has been pervasively used by the second plaintiff. The plaintiffs hold 37 registrations of the mark HAMDARD and the eye design, in relation to diverse goods and products. According to the suit averments, the extensive use of the HAMDARD mark and the eye design associate them with the plaintiff's superior quality products, available in and outside the country. It is also claimed that the mark and the design, which is also a mark, are well known and famous trademarks, which have acquired distinctiveness.