CHARAK PHARMACEUTICALS INDIA LIMITED Vs. DEEPHARMA LIMITED

JUDGEMENT

(1.) This order will govern the disposal of lAs. 6522/96 & 7562/96.

(2.) Suit for permanent injunction and damages etc. was filed, inter alia, alleging that. one of the pharmaceutical preparations, namely ALSAREX manufactured and sold by the plaintiff is meant to heal ulcers and check recurrence of ulcers which normally occur in stomach, duodenum, oesophagus and Meckel's diverticulum. Plaintiff got the trade mark ALSAREX registered under No.231783 as on 18th October, 1965 in clause 5 and the registration is valid upto 17th October, 2000. Plaintiff has spent considerable sum on promotional literature in respect of the said trade mark and the year-wise sales figure thereof for the period 1983-84 to 1993-94 are as under :- <FRM>JUDGEMENT_221_AD(DEL)6_1998Html1.htm</FRM>

(3.) It is stated that defendant applied for registration of trade mark ULCEREX for pharmaceutical formulations vide application No.467638. In the application defendant has claimed to have used the above trade mark ULCEREX since 9th July, 1985. Said application was advertised in the Trade Marks Journal No. 1062 dated 1st September, 1993 at page 494. Under Section 21 of the Trade & Merchandise Marks Act, 1958 (for short 'the Act') the plaintiff opposed the application vide opposition No Del-8256. On completion of pleadings and evidence and hearing the parties, the Assistant Registrar of Trade Marks by the order dated 22nd March, 1986 allowed the plaintiffs opposition and refused the defendant's said application for registration mainly on the following grounds:-