TORRENT LABORATORIES LIMITED Vs. CIBA GEIGY LIMITED

JUDGEMENT

(1.) Per <DJG>Balia</DJG>,J. This appeal is against the judgment and order of the learned Single Judge dated 5/6-5-1992 of this court in appeal No.1 of 1992 under section 109 (5) of the Trade and Merchandise Marks Act, 1958 (`Act of 1958') by which registration of trademark `ULCIBAN' granted in favour of the appellant was set aside on appeal by the respondent company.

(2.) The appellant- Torrent Laboratories Limited had filed an application for registering `ULCIBAN' as its trade mark under the Act of 1958 on 5.6.1984 which was advertised before acceptance under section 20 in Trade Mark Journal No.925 dated 16.12.1989. The respondent CIBA Geigy Limited, a foreign company, filed notice of opposition inter alia on the ground that it was a registered proprietor of trade mark `CIBA' and several other trade marks comprising trade mark `CIBA' for specification of the goodsmedicinal preparations, pharmaceutical and veterinary preparations, sanitary chemical substances, disinfectants, preparations for killing weeds and destroying vermin. They are using the trade marks in India through their licensee Hindustan Ciba-Geigy and step for registration of registered user of the same has also been taken and the application is pending before the Trade mark registry. Ciba forms the fore-part and most distinctive and prominent feature of the plaintiff's corporate name and trading style. The opposition was founded on the ground that other mark `ULCIBAN' comprised of two prominent features `ULCI' and `BAN' and is identical to the use to their trade mark. Registration of the appellant's mark is likely to cause confusion and deception amongst the trade and public who would assume that it was yet another mark of the opponent. Opposition was under sections 9, 11 (a), 11 (e), 12(1) and 18(1) of the Act of 1958. Before the Registrar, opposition under section 12(1) was abandoned and was confined to sections 9,11 (a), 18 (1) and 11 (e).

(3.) While there was no dispute about the fact that the opponent-respondent is registered proprietor of mark `CIBA' and other marks using the letters `CIBA' with respect to various commodities, more particularly referred to in the application viz. CIBA, CIBAZONL and CIBALGIN. The question was of the proprietary interest of the appellant in the word `ULCIBAN' and its eligibility under section 9.