SHOBHAN LAL JAIN Vs. DRUGS CONTROLLER

JUDGEMENT

(1.) Petitioner manufactures and markets cosmetics in India. Respondent No. 1 (hereinafter referred to as "R-1") is an authority whose licence is required under the Drugs & Cosmetics Act, 1940 before any cosmetic or drug can be manufactured in the State. Respondent No. 2 (hereinafter referred to as "R-2") is the licensee of Respondent No. 3 (hereinafter referred to as "R-3"), who also manufactures cosmetics. By means of the present, writ, petition, the petitioner has, inter alia, challenged the order dated 1/12/2007 of R- 1 i.e. the Drug Controller, Directorate of Health Services, Uttarakhand by which the Drug Controller has withdrawn the show cause notice, which he had earlier issued to R-2. Apart from this, the petitioner has also sought a writ in the nature of Mandamus seeking for the records from R-.1 relating to the permission granted by R-1 to R-2 for manufacturing of "cosmetics" under the brand name of "JOLEN", etc. The petitioner has further prayed that a writ, order or direction in the nature of Mandamus be issued to R-1 to immediately withdraw and cancel the permission / approval granted to R-2 vide order dated 5.2.2005 for manufacturing cosmetics under the Trade Mark "JOLEN".

(2.) The petitioner is the registered owner of this Trade Mark i.e. JOLEN in India and hence claims the exclusive right of its use against any other person including R-2 and R-3. He therefore has objected to the grant of licence by R-1 to R-2 for manufacturing a cosmetic, under the brand name JOLEN, of which the petitioner is the registered owner. Though predominantly it is a trade mark dispute between the parties, what is here before this Court is the issue as to whether the grant of the licence by R-1 to R-2, is legally sustainable or not?

(3.) R-3 is a company incorporated under the laws of United States of America in the year 1969, in the name and style of M/s JOLEN Inc. According to R-3, it is engaged in the business of manufacturing and marketing of cosmetic products such as cream, bleach, skin creams, lotion etc. which tire marketed world over under a distinctive trade mark JOLEN. R-3 claims that this it has been doing since 1955. It claims to be the owner and proprietor of this trade mark/trade name called JOLEN, on account of being its inventor, prior and global user amongst other factors. It is also claimed by R-3 that although it has been selling its goods in India with effect from 2004, through R-2, which is its licensee, these goods were available in India even prior to 2004, mainly through Duty Free Shops. The trade mark JOLEN is also registered in favour of R-3 in respect, of cosmetics referred above, in the United States of America since 1969, and also in more than 40 other countries of the world. It is claimed by R-3 that on the basis of its long use and its quality with its world wide sale, it has a huge reputation and credit and most importantly a "trans-border reputation" for its products and the trade mark JOLEN.