APEX LABORATORIES LTD Vs. ZUVENTUS HEALTH CARE LTD

JUDGEMENT

(1.) APEX Laboratories Limited, the appellant herein, are the manufacturers of pharmaceuti'cal products and have adopted the Trade mark "zincovit" on 16. 3. 1988 for their product viz. , syrup and tablets and have also applied for its registration as a proposed mark and obtained registration of the Trade Mark, which has been renewed and is in force. It is claimed that they have filed a number of suits against infringe'ment of their Trade Mark "zincovit" and have also obtained injunction orders. Sometime during February, 2006, it came to the knowl'edge of the appellants that the respondents are manufacturing and selling pharmaceutical products under the Trade Mark "zinconia". The appellant's claim is that the respondents are guilty of infringement of the Trade Mark and also of passing off. Therefore, they filed C. S. No. 216 of 2006 and applied for injunc'tion in O. A. Nos. 244 and 245 of 2006.

(2.) THE respondents resisted the application claiming that there are several registered own'ers of Trade Mark containing the word "zinco" and the appellant is not the exclusive proprietor of the word "zinco". It is also claimed that the marks are visually and pho'netically dissimilar and there are no oral, vi'sual or conceptional similarities and the essen'tial features in both the marks i. e. , colour com'bination, scheme of writing, are entirely dif'ferent. Interim injunction granted exparte was vacated by the learned single Judge holding that there is no likelihood of causing confusion in the mind of the purchaser and there is no similarity and deceptiveness in the names "zincovit" and "zinconia" and further that'zinc'is the common name in trade. Against this order, the appeal has been filed.

(3.) IN the case on hand, both the medicine preparations contain'zinc'and therefore, the word "zinc" is common to the trade and is publici juris. The appellant cannot claim own'ership over the said word. Further, it would be dangerous to split the word into two and grant injunction merely because both the trade names contain the word'zinc'. IN Wil'liam bailey (Birmingham) Ltd's 1935 (52) RPC 136) FARWELL, J. , said: "i do not think it is right to take a part of the word and compare it with a part of the other word; one word must be considered as a whole and compared with the other word as a whole. I think it is a dangerous method to adopt to divide the word up and seek to distinguish a portion of it from a portion of the other word. " It is no doubt, true, when prescriptions are telephonic or handwriting, the chances of confusion or mistake cannot be ruled out if the marks appear too much alike when handwrit'ten or sound too much alike when pronounced.