MACLEODS PHARMACEUTICALS Vs. ZANEKA PHARM

JUDGEMENT

(1.) In these proceedings, the plaintiff seeks decree for permanent injunction and damages for passing off rendition of accounts etc. against the defendant.

(2.) According to the plaint averments, the plaintiff engages itself in the business of manufacture and sale of pharmaceutical products and medicinal preparations under various formulations. It claims to own and mark the tablet as "DOMIZOL". It is averred that the trade mark was adopted and after it was conceived in March, 2002, in respect of Omeprazole magnesium equivalent to Omeprazole being 10mg. The tablet is sold in 10mg. and 20 mg. potency. The plaintiff claims to use the trade mark continuously and extensively after March, 2002. The plaintiff further avers that it filed an application for registration of the said trademark "Domizol" under No.1071053 in class-5 of the 4th Schedule to the Trade and Merchandise Marks Act, 1958, on 21.12.2001. Its application was allowed on 1.6.2005. The plaintiff, therefore, avers it is the exclusive owner of the trade mark.

(3.) It is claimed that the plaintiff came across an advertisement under Section 20(1) of Trade and Merchandise Marks Act, 1999 in the Trademark Journal dated 14.10.2003 where the defendant No.1 had claimed for registration of the trade mark Domizole. The said advertisement contained a statement that the defendant had proposed to use the said mark. The plaintiff claims to have filed notices of opposition to the application for registration of the trade mark on 7.4.2004, resisting the registration of the defendant's trademark Domizole as amounting to infringement as well as passing off its mark. The plaintiff, in the circumstances, avers that it caused a legal notice to the defendant No.1 dated 29.9.2004 calling upon it to desist from using trade mark Domizole as it was deceptively similar to the plaintiff's trademark and in any event infringe the plaintiff's trade mark "Domilzol".