CEDILA HEALTH CARE LTD Vs. DABUR INDIA LTD

JUDGEMENT

(1.) CM 13141/2008 (exemption)Exemptions allowed subject to all just exceptions. FAO (OS) 387/2008 The appellant filed a suit for permanent injunction restraining passing off of the trade mark "sugar FREE", for damages, for rendition of account, delivery etc. The plaintiff claims to be a leading pharmaceutical company of india and claims that in the year 1988 they developed and launched in the market a product without natural sugar, containing an artificial sweetner, as a low calorie table top sweetner under the trade mark "sugar FREE". The trade mark of the plaintiff is not registered but it is the case of the plaintiff that the expression "sugar FREE" came to occupy a secondary meaning in respect of the product of the plaintiff.

(2.) THE defendant is manufacturing and marketing ayurvedic medicines, proprietory medicines and food products. It is the claim of the appellant that the defendant has dishonestly adopted the mark "sugar FREE" which completely erodes the distinctiveness which is associated with the mark "sugar FREE".

(3.) THE plaintiff along with the plaint filed an application for interim relief under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil procedure, 1908. It is this application which has been dismissed by the learned single Judge in terms of the impugned order dated 09. 07. 2008. It may be noticed that the claim of exclusive right of the plaintiff to "sugar FREE" forms subject matter of adjudication at the interlocutory stage in another application filed under Order 39 Rule 1 and 2 of the said Code being IA NO. 3847/2007 in C. S. (OS)No. 605/2007 Cadila Healthcare Ltd. V. Gujarat Co-opeartive Milk Marketing federation Limited and Others. 2008 (36) PTC 168 (Del.) It is this judgment which has been taken note of in the impugned order and after discussing the ratio of the said judgment the learned single judge in the impugned order has decided to follow the same course of action though there is some difference in the final directions passed by the two learned Judges.