UNIMED TECHNOLOGIES LTD. Vs. EYEKARE KILITCH LTD.

JUDGEMENT

(1.) These two Original Side appeals have been preferred by the applicants in O.A.Nos.428 of 2011 and 14 of 2012 in C.S.No.334 of 2011 being the plaintiffs challenging the common order of dismissal passed by the learned single Judge dated 06.07.2012.

(2.) The appellants herein are the plaintiffs in the suit. The first appellant is the manufacturer of various drugs and the second appellant is the licencee/permitted user of the trade mark "TOBA". The predecessor of the first appellant adopted the mark "TOBA" in the year 1995 for Ophthalmic preparation. It is the specific case of the first appellant that in pursuant to the various constitutional changes, the trade mark "TOBA" became its property as the sole Proprietor. In the year 2008, the first appellant had also applied for the registration of trade mark "TOBA".

(3.) In the month of October, 2010, the appellants came across the trade mark journal advertisement for the mark "TOBAEYE". The first respondent/first defendant has also applied for registration. The appellants/plaintiffs came to know that the second respondent/second defendant is involved in the manufacture of medicinal preparation with the mark "TOBAEYE". The first respondent/first defendant is marketing the same all over the India including the City of Chennai. According to the appellants, the mark "TOBA" and "TOBAEYE" are phonetically, visually and structurally similar. The appellants have earned the goodwill in the market, apart from a good reputation. As the appellants are having registered trade mark in the mark "TOBA" and the defendants are indulging in passing off the product of the appellant, a suit has been laid for the relief of permanent injunction, damages, ' of accounts and for delivery of the materials used by the defendants. The suit was also laid after exchange of notices between the parties as the defendants refused to change the mark from "TOBAEYE".