MEDLEY LABORATORIES P LIMITED Vs. ALKEM LABORATORIES LIMITED

JUDGEMENT

(1.) THIS appeal is instituted against an order passed by the learned Single Judge on December 21, 2001 in Notice of Motion No. 1790 of 2001. By the impugned order, the learned Single Judge rejected the application for ad interim relief filed by the appellants-applicants-plaintiffs. So far as the motion was concerned, it was made returnable after six weeks, and was ordered to be placed on Board on its own turn.

(2.) THE appellants are the original plaintiffs. Suit No. 2597 of 2001 was filed by the plaintiffs against the defendant for permanent injunction restraining the defendant from infringing their registered trade mark SPOXIN. It was the case of the plaintiffs that in April, 1984, plaintiff No. 1 applied for and obtained Trade Mark SPOXIN which was registered in Part A of the Register vide No. 420835 in respect of Pharmaceutical and Medicinal Preparations in Class 5. The registration certificate was issued, and was renewed from time to time. It was also the say of the plaintiffs that they started using the said Trade Mark SPOXIN, exercising control over the quality of the medicines and pharmaceutical preparations manufactured by them. The mark has been used by the plaintiffs for medicinal preparations containing the generic drug SPARFLOXACIN, and the product was used as an anti-bacterial drug and prescribed for treatment of respiratory track infections, urinary track infections and skin and soft tissue infections. According to the plaintiffs, they were using the mark and were manufacturing drugs since September, 1999.

(3.) IT is alleged by the plaintiffs that the defendant started selling pharmaceutical preparation under the mark SUPAXIN, which was deceptively similar to the plaintiffs registered Trade Mark SPOXIN, and thereby they had committed acts of infringement and passing off by contravening the provisions of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act ).