CADILA PHARMACEUTICAL LTD Vs. TORRENT PHARMACEUTICALS LTD

JUDGEMENT

(1.) On account of shortage of time reasons could not be recorded, when this Appeal was heard and rejected during vacation on 11/6/1996. They are recorded now. This Misc. appeal from order under Order 43 Rule 1(r) of the Code of Civil Procedure is directed against the order dt. 1st June, 1996 passed by the learned District Judge, Ahmedabad (Rural) at Mirzapur, whereby the learned Judge confirmed the ad- interim injunction granted below application Ex. 5 in Regular Civil Suit No. 1 of 1996.

(2.) The plaintiff's say is that they introduced drugs ALPRAX in the year 1988 and marketed them in all the States of this country. The total sale of the ALPRAX is exceeding Rs. 4508.65 Lakhs. They have acquired valuable reputation and goodwill of the said product. It is alleged that the defendant appellant, somewhere in the month of April, 1996, introduced their product under identical and/or deceptive similar brand named ALREX. The plaintiff, thus, sought ad-interim injunction restraining the defendants from infringing the plaintiff's trade mark ALPRAX or any other mark deceptively similar to the petitioner's said registered trade mark ALPRAX. Say of the appellant defendant is that there is no similarity between the product ALREX and ALPRAX. The further say of the defendant is that ALREX and ALPRAX are Schedule "H" drugs, and they are to be sold only under the prescription of Medical Practitioners and these drugs can be dispensed with by qualified and authorised chemists only and as such no question of confusion arises. The learned Judge, after hearing the parties found that the plaintiffs are the owners of the registered trade mark ALPRAX and they are using it since 1988, whereas the defendants have introduced ALREX in the month of April, 1996. The court also found that the trade mark used by the defendant is identical or deceptively similar with the registered trade mark of the plaintiff. The court thus found prima facie case in favour of the plaintiff. The court, considering the question of balance of convenience and irreparable injury, found that the plaintiffs have placed sufficient material before the court to show the nature and extent of reputation which they have acquired for their goodwill, and there is likelihood of their sufferings by another person of their goods, as the goods of the plaintiffs. As against this, the defendants did not place any material before the court in the shape of figure of their sale or otherwise, nor have they even cared to state as to when they started using the said trade mark ALREX. Considering the facts of the case and the material on record, the court arrived at the conclusion that if the injunction is granted, no prejudice will be caused to the defendants, as they have yet not made any dent in the market. The court further observed that if the defendants are prevented from running their business of manufacturing medicines and in case defendants succeed, it can resume the name. On the other hand, if the injunction is not granted and the defendants are allowed to establish themselves the drug in the market and if the Doctors, Medical Representatives and medical shops got used to the said products during the pendency of the suit without any distinction, it would be commercially difficult for the plaintiffs to have the benefit of the decree that may be passed in case the plaintiff succeeds in the suit. Thus the question of irreparable injury was also decided in favour of the plaintiffs.

(3.) I have heard Mr. Mihir Thakor, learned counsel for the appellant and Mr. Kadam with Mr. R.R. Shah, learned counsel for the respondent caveator. The defendants could neither before the trial court, nor before this court could give exact date of introduction of its products ALREX in the market. Their only say is that they started somewhere in the month of April, 1996. Promptly the suit was filed on 20th of April, 1996 and interim injunction was obtained against the defendant which has been confirmed by the impugned order of the learned District Judge dated 1/6/1996. After notice, the matter came up for admission during vacation on 11th June, 1996. The matter could be adjourned to on 1st day of opening of the court i.e. on 17th of June, 1996 which would have mean to continue status of 30th April only for 5 days more. However, on the insistence of the learned counsel for the appellant, the matter was heard for extra one hour of the scheduled time of the court sitting. The learned counsel cited various authorities and read them in extenso. Let me restate that the scope of Misc. appeal is not that of a regular appeal under Sec. 96 of the Code of Civil Procedure. That the order refusing or grant of temporary injunction is of a discretionary character. Ordinarily, a court of appeal will not interfere with the exercise of discretion by the trial court and substitute its own discretion. In such a discretionary order, interference to permissible only, it court acts arbitrarily or perversely or capriciously in disregard of sound legal principles or without considering all the relevant records. Mere possibility of the appellate court coming to a different conclusion, will not justify interference. Let us further be clear that a Prima facie case is not be confused with full proof case. It only means a bonafide substantial question which needs investigation and decision on merit. Mr. Thakor, learned counsel for the petitioner submitted that in order to decide whether the trade mark is likely to deceive or cause confusion, it must be compared as a whole. It is not right to take a portion of a word and say that portion of the word differs from the corresponding portion of the word in other case there is no sufficient similarity to cause confusion. He has placed reliance on the decision of the Apex Court on F. Hoffimann-La Rocho and Co. Ltd. Vs. Geoffrey Hanners and Co., Private Ltd. AIR 1970 SC 2062. The learned counsel further submits that according to the Supreme Court, the true test is whether the totality of the proposed trade mark is such that it is likely to cause deception or confusion or mistake in the minds of persons accustomed to the existing trade mark. The question in the said case was whether the word "DROPOVIT" is deceptively similar to the word "PROTOVIT". On the facts of the case, on comparison of the trade mark, the court held that "DROPOVIT" and "PROTOVIT" are no deceptively similar.