RAM RAKHPAL Vs. AMRIT DHARA PHARMACY

JUDGEMENT

(1.) This is a suit for the removal of an entry of the trade mark Amritdhara from the register of trade marks, for adding a note of disclaimer of any exclusive right to the word Amritdhara to the entry relating to the trade mark in the register and for imposing such limitation or condition on the registration of the trade mark Amritdhara as this court may deem just and proper. It is an admitted fact that on 21-8-1942 Pandit Thakur Dutt Sharma, defendant No. 2, managing proprietor of the Amritdhara Pharmacy Ltd., Dehra Dun, defendant No. 1, made an application No. 3813 before the Registrar of Trade Marks, Bombay, defendant No. 3, for registration of trade mark Amritdhara in class 5 of pharmaceutical substances. The trade mark was advertised in the Trade Marks Journal as required under Section 15(1) of the Trade Marks Act (Act No. V of 1940), but nobody objected to the registration of the trade mark. Consequently the Registrar registered the trademark on 16-2-3946 with effect from 21-8-1946. The registration was initially for three years; it was subsequently renewed for 15 years with effect from 21-8-1949. The plaintiff is admittedly the proprietor of the Dardnashik Dawakhana, a pharmacy situated in Moradabad. He is manufacturing in. the pharmacy a drug known as Amrit Sukh-jiwan Dhara.

(2.) The case of the plaintiff is as follows : The plaintiff has been manufacturing Amrit-Sukhjiwan Dhara, under that very name, for more than 50 years and has been advertising it extensively and continually. He got the name and the style registered as a trade mark with some Chamber of commerce in Calcutta in 1929. On the coming into force of the Trade Marks Act, 1940 (to-be referred to as "the Act" in the rest of the judgment) he deposited the trade mark before defendant No. 3 on 12-5-1941 as required under Section 85 of the Act and his application No. 13699 for registering his trade mark was pending before him. The defendants 1 and 2 (who will henceforth be referred to as "the defendants") prosecuted him in the court of the City Magistrate, Dehra Dun (case No. 67 of 1951) for the offences of Sections 482 and 486, I. P. C., and the case was pending. In this case the defendants admitted the fact of the deposit of his trade mark with the Registrar. They also filed a suit (suit No. 5 of 1951) against him for (1) damages for infringement of their trade mark Amritdhara by manufacturing and selling Amrit Sukhjiwan Dhara and (2) an injunction to restrain him from doing so in the court of the District Judge, Saharanpur. On account of these proceedings pending against him he considered himself aggrieved by the entry of the defendants' trade mark in the register. The trade mark was not registerable at all because it does not contain any of the essential particulars mentioned in Section 6 of the Act; the words "Amrit" and "dhara" are not invented words; they are words used in books and the name Amritdhara has been used for medicines for long. They have direct reference to the character or quality of the medicine, are laudatory and are not a distinctive mark, inasmuch as they have not been adapted to distinguish the defendants' medicine from similar medicines manufactured by others. The trade mark consists of words, the use of which is likely to deceive or to cause confusion and is contrary to the law contained in Section 6 of the Act. The words are publici juris and their use is disentitled to protection in a court of justice. The main constituents or the medicine Ammitdhara, pepermint, campher and thymol, are known to a large number of people in the country and the prescription is mentioned in a number of Ayurvedic books. The name Amritdhara is the commonly used and accepted name of a single chemical compound, but the chemical or technical name of the compound is not known. The defendants secured registration from defendant No. 3 by deceiving him by misrepresenting to him that they had been manufacturing the medicine Amritdhara continuously since 1901 and had spent 10-12 lakhs of rupees on its advertisement. They manoeuvred in getting the fact of their applying for registration concealed from the plaintiff in spite of knowing about his deposit of his trade mark No. 13699. Defendant 3 also committed illegally in registering the trade mark without giving him a notice of the defendants' application which he was bound to give under the rules framed by Government under the Act. He did not object to the registration of the defendants' trade mark because he was not aware of their application. Since the entry of the trade mark in the register was made wrongly, it should be removed from the register; it is not his case that the entry continues wrongly in the register.

(3.) The case of the defendants is as follows: Sri Thakur Dutt Vaid invented the medicine and called it Amritdhara in 1901. In 1907 he got it registered under Act No. III of 1877. The trade mark Amritdhara was rightly registered. It is not descriptive and has no direct reference to the nature or quality of the medicine which is used for toothache, headache, stomachache etc. It is not laudatory. It is an invented word. It is also a distinctive mark and all medicines bearing names of which Amrit or dhara is a part are taken by the public to be Amritdhara. No deception was practised by the defendants when applying for the registration of the trade mark. It is not contrary to any law, is not likely to deceive or cause confusion and is not disentitled to protection in a court of justice. Though some people might have guessed some of the ingredients used in Amritdhara, its exact composition is not known to anybody. People only make conjectures about its exact composition. The trade mark is not publici juris and in any case it was not at the time of the registration. Amritdhara is a fancy name and there is no medicine of that name at least having the same qualities and in liquid form. It is not true that the plaintiff has been manufacturing Amrit Sukhjiwan Dhara for the last 50 years. In his affidavit before the registrar he had said that he had been manufacturing it since 1924. The defendants came to know of the manufacture of the medicine by the plaintiff in 1951 and at once prosecuted him and filed a suit against him in the courts at Dehra Dun and Saharanpur respectively. The application of the defendants for registration of the trade mark was advertised in the Trade Marks Journal and that was sufficient compliance with the law; the registrar was not bound to give a notice to the plaintiff of the application. The plaintiff had not deposited his trade mark with the registrar before 21-8-1942 but even if the registrar was bound to give notice to him of the defendants' application, his failure to do so did not affect the registration. The registration of the trade mark had, after the expiry of seven yeara from the date of registration became valid in all respects and could not be expunged from the register under Section 46. Amritdhara was not the commonly used and accepted name of a single chemical compound. The plaintiff was not an aggrieved person within the meaning of Section 46 of the Act; even If he had been an aggrieved person on account of his applying for registration of his trade mark, he ceased to be so on his application being dismissed by the registrar. In the end special costs were asked for.