CIBA GEIGY LIMITED Vs. SUN PHARMACEUTICAL INDUSTRIES

JUDGEMENT

(1.) . This appeal is filed against an order passed by the Second Extra Assistant Judge, Baroda below application Exh. 5/04/1992 in Trade Mark Suit No. 1 of 1992. The appellants are the original plaintiffs and the respondent is the original defendant. The appellants -plaintiffs filed a suit in the District Court at Baroda being Trade Mark Suit No. 1 of 1992 for permanent injunction restraining the respondent-defendant from using in any manner in relation to pharmaceutical or medicinal preparations, the impugned trade mark CLOFRANIL or any other distinctly similar trade mark so as to infringe the trade mark registered in favour of the plaintiff No. 1 bearing No. 233145 under the style of ANAPRANIL. Alongwith the plaint, the plaintiffs filed an application Exh. 5 under Order 39 Rules 1 and 2 of the Code of Civil Procedure, 1908 for interim relief. The Assistant Judge, Baroda by an order dt. 3/04/1992 issued notice to the defendant and granted ex-parte ad-interim relief in favour of the plaintiffs restraining the defendants from using the said trade mark till 24/04/1992.

(2.) . Being aggrieved by the said order the defendant approached this Court by filing Appeal From Order No. 200 of 1992 (reported in 1992 (2) GLR 1049) and after hearing both the parties, I partly allowed the said appeal by my order dt. 9/04/1992 and directed the trial Court to dispose of the application Exh. 5 on or before 18/04/1992. Pursuant to the said order, the learned Judge heard the parties and by the impugned order, dismissed the application for interim injunction filed by the plaintiffs. It is against this order that the present appeal from order is filed by the original plaintiffs.

(3.) . Mr. G. N. Desai, learned Counsel appearing for Mr, A. L. Shah, submitted that the impugned order below Exh. 5 requires to be quashed and set aside on a number of grounds. He submitted that the trial Court has committed an error of law in not keeping in mind and considering the distinction between "infringement of a trade-mark" and "action of passing-off". He submitted that in the first category of cases, since trade mark is a proprietory right, mere act of infringement and breach of the registered trade mark is sufficient and nothing more is necessary. If the infringement is established, the plaintiff is entitled to injunction. He submitted that the mark of the defendant is 'deceptively similar' as denned in Sec. 2(l)(d) of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as "the Act"), which reads as under :