AMRUTANJAN LIMITED Vs. MEHTA UNANI PHARMACY AND COMPANY

JUDGEMENT

(1.) THE plaintiff has filed the above suit praying for a decree for declaration that the threat issued by the defendants that they would be taking action against anybody using the expression 'Cold Rub' on account of their claim that they are the exclusive owners of this expression is unjustifiable, for permanent injunction restraining the defendants from threatening the plaintiff by any means circulars, advertisements or notice directly or indirectly declaring that the expression 'Cold Rub' shall not be used by any one and for cost.

(2.) THE plaintiff is a public limited Company. The plaintiff and its predecessors -in -interest have been manufacturing pharmaceutical preparations for coughs, cold and pains. Their most famous preparation is known as Amrutanjan Pain Balm. They product is being sold under the Trade Mark Nos. 8906 and 8907 etc., registered as early as 1942 under the Trade Marks Act, 1940. The plaintiff started producing another product in 1962 under the name and style of 'Anoleum' for coughs and colds. Such product was sold in flat circular tins as well as in tubes. The plaintiff filed Trade Mark Application No. 207076, dated 29.1.1962 for the registration of the name 'Anoleum' as a pharmaceutical preparation in Class 5, Schedule IV of the Rules. The same was registered and published in Trade Mark Journal, dated 1.9.1962 in Class 5. Subsequently, on 6.5.1969 another Application in No. 256558 was filed by the plaintiff before the Registrar and it was published in Trade Mark Journal dated 1.4.1970 for registration of the principal face of the circular tin container with the word 'Anolcum' written across the circular tin diametrically. Again Application No. 256676, dated 12.5.1969 was made for registration of the design and get up on the tube capsule in which the product 'Anoleum' was sold. According to the plaintiff ever since 'Anoleum' was released in the market in 1962 the product has been described as 'Cold Rub' just as their Amrutanjan product was described as 'Plan Balm'. According to the plaintiff, the expression 'Cold Rub' consists of two common words in frequent currency in English language. The first defendant is a manufacturer of pharmaceutical preparations known to the plaintiff closely as adversaries in Criminal and Civil Proceedings since 1966. In view of the above, according to the plaintiff, it had seen a publication, styled 'caution notice' issued by one Mr. C.H. Bhimani, Advocate, published in Times of India, dated 6.9.1986 stating the word 'Cold Rub' is the registered Trade Mark of the second defendant which owns the first defendant firm. It is claimed therein that the Trade Mark had been registered in respect of a 'vapourising ointment' and the said notice forbids anybody from marketing any ointment with the name 'Cold Rub'.

(3.) ON the basis of the above pleadings, the following issues were framed for trial: -