TTK PHARMA Vs. ROBAPHARM AG

JUDGEMENT

(1.) THE applicant TTK Pharma Ltd. have filed this application to stay the proceedings in C. S. No. 1148 of 1993 till the disposal of the rectification application CAL No. 653 before the Registrar of Trade Marks, Calcutta.

(2.) THE main averments found in the affidavit filed alongwith the application are as follows: THE applicant have filed an application for rectification for removal of the respondent's trade mark OSSOPAN registered under No. 129304 in Class 5 on the ground of non-use amongst several other grounds before the registrar of Trade Mark, Calcutta, in CAL No. 653. THE application was taken on file and allotted serial No. 583683 dated 30. 10. 1992. THE respondent have filed c. S. No. 1148 of 1993 before this Court after filing of the rectification application in CA. No. 653 by the applicant. THE respondent have never used the trade mark "ossopan" in India at any point of time. THE respondent have registered the trade mark "ossopan" in India without any bona fide intention to use the same and for more than 5 years the same has not been used by the respondent. THE trade mark OSSOPAN is wrongly remaining on the register and is invalid ab initio, and the same to be rectified under Sections 46 and 56 of the Trade and Merchandise Marks Act, 1958. THErefore, C. S. No. 1148 of 1993 on the file of this Court has to be stayed.

(3.) THE applicant herein have filed the present application No. 368 of 1994 under Section 111 of the Trade and Merchandise marks Act, 1958 "no action concerning the trade mark in question is pending in any Court. " As already stated the said application has been filed on 2. 11. 1992, whereas the applicant herein have filed C. S. No. 1401 of 1992 before this Court on 3. 11. 1992. THE manifest intention of the applicant seems to be that they had filed the application one day earlier to the Suit to prove the fact that no action is pending in any Court on the date of filing of application CAL 653. However, to the knowledge of the applicant they have signed the suit also on 2. 11. 1992 the date of the application before the registrar of Trade Marks, which shows that they have taken two actions simultaneously and in such context the declaration of the applicant that "no action concerning the trade mark in question is pending in any court" is false, to the knowledge of the applicant. THE reasonable inference which can be drawn in such circumstances would be that the applicant have given a false statement in FORM TM-26 before the Registrar of Trade Marks.