ASTRA IDL LIMITED Vs. TTK PHARMA LIMITED

JUDGEMENT

(1.) THE plaintiff has filed this suit against the defendant for permanent injunction restraining the defendant by itself, its servants, agents, distributors and representatives from infringing the plaintiffs trade mark Betaloc registered under No. 326230 dated June 16, 1977 in Class 5 in respect of pharmaceutical preparation by use of the impugned trade mark Betalong or any other trade mark deceptively similar to plaintiffs said registered trade mark "betalong" or any other mark deceptively similar to plaintiffs trade mark "betaloc" in relation to pharmaceuticals preparations and form manufacturing, selling offering for sale or otherwise dealing in pharmaceuticals preparations bearing the trade mark "betalog" or any other mark deceptively similar to plaintiffs trade mark "betaloc" so as to pass off the defendants goods as and for the goods of the plaintiff or in any other manner whatsoever and for damages, costs and other reliefs as prayed for in the Plaint filed. The plaintiff has taken out the present Notice of Motion for interim injunction in terms of permanent injunction prayed for in the Plaint filed.

(2.) AS averred in the plaint, the plaintiff, a public limited company duly incorporated and registered under the provisions of the Companies Act, 1956, is carrying on business of manufacture and sale of pharmaceutical and medicinal products. The plaintiff is proprietor of trade mark Betaloc which is registered under No. 326230 dated June 16, 1977, in Class 5 in respect of pharmaceuticals preparation. According to the plaintiff, by virtue of registration of the trade mark Betaloc under the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as "the said Act"), and its long, extensive and continuous use and reputation, the plaintiff has acquired proprietory rights in the said trade mark Betaloc and is entitled to its exclusive use in respect of all kinds of pharmaceuticals preparations in Class 5 under the said Act and the Rules made thereunder. The defendant is also a limited company duly incorporated and registered under the provisions of the Companies Act, 1956. The defendant is also carrying on similar business in manufacture and sale of pharmaceutical and medicinal product. It is the case of the plaintitff that in or about the month of November 1987, the plaintiff became aware of the manufacture and sale of pharmaceutical product under the trade name Betalong by the defendant. The plaintiff has been using the said trade mark Betaloc in respect of drug for the treatment of hyper tension, angina pectoris, arrythanias, etc. the defendants product is also for the treatment of hyper tension, angina pectoris, arrythanias, etc. the defendantss product is also for the treatment of hyper tension, angina pectoris, arrythanias, etc. On acquiring the knowledge about the defendants said product, the plaintiff realised that its rights were being impaired by the defendant and as such the plaintiff through its trade mark attorneys served a cease and desist notice dated November 18, 1987 upon the defendant. The said letter was replied by the defendant vide its letter dated December 28, 1987. The defendant refused to comply with the requisitions made by the plaintiff in the said cease and desist notice. According to the plaintiff, despite the said cease and desist notice the defendant has been continuing the use of the trade mark Betalong with a view to trade upon and benefit from the reputation and goodwill enjoyed by the plaintiffs trade mark Betaloc. The plaintiff has averred that the trade and public in normal course are likely to believe that the defendants goods also emanates from the plaintiff. It is the case of the plaintiff that the defendant has adopted the trade mark Betalong with dishonest intention and the defendant has committed acts of infringement in adopting and using the similar trade mark Betalong in respect of the similar goods. According to the plaintiff the said goods of the defendant bearing the trade mark Betalong are being passed off and are likely, to be passed off as and for the well-known goods of the Plaintiff sold under the trade mark Betaloc.

(3.) ACCORDING to the defendant, in the year 1986 the defendant decided to manufacture and launch a new product for controlling hyper tension and treatment of angina pectoris and arrythanias. For that product the defendant coined and selected the trade mark Betalong and in the month of March 1986 the defendant applied for registration of that trade mark under the said Act. The application of the defendant is filed under No. 451743 on March 31, 1986 and is still pending. The new product of the defendant was marketed and sold under the trade mark Betalong and the first sale there of look place on December 29, 1986. According to the defendant. During the period between December 29, 1986 to May 31, 1986 the defendant has sold the said product under the trade name Betalong of aggregate value of Rs. 2,90 265-64 and during the period from June 1. 1987 to May 31, 1988, the defendant has sold the said product under the said trade mark Betalong of the aggregate value of - Rs. 3,57,994-30. During the period commencing from June 1, 1987 to May 31, 1988, the defendant has sold the said product under the said trade mark Betalong of the aggregate value of -Rs. 1,31,407-92ps. Since November 18, 1988, in view of the ad-interim order of injunction passed by this Court on October 26, 1988, the defendant has withheld the sale of the said product under the trade mark Betalong It is the case of defendant that the said product Betalong has been continuously marketed and sold all over India till November 18, 1988 and that the said product has been identified with the defendant and has acquired good reputation and goodwill. It is the case of the defendant that the said product Betalong is a drug which falls under Schedule H to the Drugs and Cosmetics Rules and as such can be sold only by a chemist holding appropriate licence under the said Rules and that too on the prescription of registered medical practitioner. The plaintiffs product Betaloc is also a drug falling under-Schedule H to the said Rules and as such the plaintiffs product Betaloc can only be sold by a chemist holding appropriate licence under the said Rules and that too on the prescription of registered medical practitioner.