T T K PHARMA LIMITED Vs. ROBAPHARAM AG

JUDGEMENT

(1.) THE present appeal is filed against the order of the learned single Judge in Application No. 368/1994 arising out of C. S. No. 1148/1993, wherein the learned single Judge has rejected the application filed by the present appellant and refused to stay the proceedings in such suit. C. S. No. 1148/1993 was filed by the present respondent claiming for the following reliefs.

(2.) THE main allegation in the suit was to the effect that the plaintiff (the present respondent) was the owner of the registered Trade Mark "ossopan" and there was violation by the defendants (the present appellant ). Apart from injunction, the plaintiff had also prayed for rendering of accounts and payment of compensation.

(3.) THE present appellant in its written statement had taken the plea that an Application has been filed under Chapter-VII of the Trade and Merchandise Marks Act, 1958, hereinafter referred to as "the Act", which had been registered by the Registrar of Trade Marks, Calcutta. The main contention which had been raised therein was to the effect that Trade Mark has been registered without any bonafide intention on the part of the plaintiff for using the same and the same has not been used continuously for a period of five years or more. There was no bonafide use of such Trade Mark and therefore the registered Trade Mark should be taken off the register as contemplated in Section 46 of the Act.