FLEMING INDIA Vs. AMBALAL SARABHAI ENTERPRISES LIMITED

JUDGEMENT

(1.) THESE original side Appeals by the plaintiffs in passing off actions, in respect of certain pharmaceutical and veterinary products, are directed against the order of the learned Judge dismissing their applications for interim injunctions and vacating the injunction earlier granted by him restraining the defendants from manufacturing those products using the brand names.

(2.) FLEMING (India), a registered firm, engaged in manufacture and sale of pharmaceutical products, having its place of business at Bangalore, filed C.S. Nos. 1143 to 1147 of 1988 and 1148 of 1988 on the Original Side of this court against M/s. Ambalal Sarabhai Enterprises Limited, also engaged in the same trade, on a larger scale, in C.S. No. 1143 of 1988 impleading the agent as the second defendant for permanent injunction restraining it from manufacturing, selling, certain pharmaceutical products using the brand names and passing them off as and for the goods of the plaintiffs, while Antox India (P) Ltd., a sister concern of FLEMING, filed C.S. No. 1147 of 1988 against the same defendant and C.S. No. 1220 of 1988 against Wander Bombay and its agent, for the same relief in respect of certain other pharmaceutical products.

(3.) THIRU U. N. R. Rao for M/s. N. G. R. Prasad learned counsel for the plaintiffs would in particular contend, that the plaintiff Fleming (India) and Antox, had been using the respective trade marks, not as registered user under Section 48 of the Trade and Merchandise Marks Act nor was their manufacture in pursuance of a loan licences under Rule 69A of the Drugs and Cosmetics Rules, but that both that the manufacture and the use of the trade names had been under valid licences issued in the respective trade names by competent authorities under the Drugs and Cosmetics Act and the unqualified consent/undertaking given by the defendants relating to the trade names in reality amount to a total surrender of their rights over the trade names in favour of the plaintiffs. The further conduct of the defendants in permitting the plaintiffs to have the licences renewed from time to time in the trade names, indicated a clear intention of surrender of their rights over the trade names. The long user of the trade names by the plaintiffs had clothed them with propriety rights over the same. The four licences issued by the Drug Controller. Gujarat while the plaintiffs'licences in the trade names were subsisting would only lead to manufacture of spurious drugs by the defendants attracting Sections 17B(i)(a) and (b). The existence of valid licences in the trade names on the date of the suits would prima facie establish the plaintiffs'case and the balance of convenience being in their favour would entitle them for the interim relief.