CIBA GEIGY LIMITED Vs. CROSSLANDS RESEARCH LABORATORIES LIMITED

JUDGEMENT

(1.) APPELLANTS are engaged in the business of marketing medicinal and pharmaceutical preparations. The first appellant is the registered proprietor of the Trade mark 'EMULGEL' in India which stands registered in its name with effect from 4.11.1987. Pursuant to the licence granted by the first appellant, the second appellant is manufacturing and marketing medicines under the Trade Mark 'EMULGEL' in India. The appellants claimed that they have acquired a common law right in the said trade mark 'EMULGEL'. In and around November, 1992, they came to know that the respondent is manufacturing and marketing a product called 'EMUGEL'. On 4.11.1992, the appellants caused a letter to be issued to the respondent to cease and desist from using the trade mark 'EMUGEL'. In their letter dated 12.11.1992 the respondent repudiated the claim of the appellants. A further letter was sent to the respondent on 2.7. 1993. Thereafter, in his letter dated 7. 7. 1993 the respondent assured the appellant that he would stop using the name 'EMUGEL' and switch over to an alternative brand name. However, the alternative brand name he adopted is 'EUGEL' by which he has only dropped the letter M from the expression 'EMUGEL'. What is significant is that while the respondent changed over to 'EMUGEL' by dropping the letter 'M' from 'EUGEL' he also simultaneously changed the colour scheme and geometric design of the carton and tube similar to those of the appellants. The usage of the name 'EUGEL' with the said colour scheme and geometric design would create deception or confusion to the appellants' product 'EMULGEL', Besides, products under the Trade Mark 'EMUGEL' manufactured by the respondent are still available in the market and the respondent continues to solicit orders and supply goods under the trade mark 'EMUGEL'. The use of the said trade name is prohibited under Sections 28 and 29 of the Trade and Merchandise Marks Act, 1958. On the original side of the High Court, the appellants laid C.S. No. 896 of 1994 seeking permanent injunction restraining the respondent from manufacturing, marketing, distributing or selling any pharmaceutical or allied goods by the use of the mark 'EMUGEL', 'EUGEL' or any other mark or name deceptively similar thereto or otherwise infringing the applicants' aforesaid trade mark 'EMULGEL'.

(2.) DURING the pendency of the suit, the appellants sought and obtained an ad-interim injunction restraining the respondent and his men from in any manner infringing the appellants' trade mark 'EMULGEL' and selling the goods under the 'EMUGEL' and or 'EUGEL' or any other mark deceptively similar to the appellants' mark 'EMULGEL', pending disposal of the suit.

(3.) BY his order dated 9.12.1994 a learned single Judge of this Curt (Lakshmanan, J.) has dismissed the injunction application and vacated the ad-interim injunction granted, holding that the appellants have not made out a prima facie case not they have shown any injury muchless irreparable injury. Besides, the balance of convenience is also not in their favour. This appeal is directed against the said order.