BEVIT PHARMACEUTICALS LIMITED Vs. PLANNED PHARMA PRIVATE LIMITED

JUDGEMENT

(1.) THIS petition is field by Bevit Pharmaceuticals Limited whose attempt to have the trade mark "atnol" registered was denied by the Deputy Registrar of trade marks on the ground that it is deceptively similar to the trade mark "entall P".

(2.) THE petitioner applied for registration of the word mark "atnol" on 14-10-1985 claiming that it has been in use since five days prior to the registration. Upon advertisement being published in the trade marks journal on 15-12-1989 a notice of opposition was lodged by the respondent on 5-3-1990. The respondent No. 1 claimed that the word mark "atnol" is likely to cause confusion since that mark is deceptively similar to respondent No. 1s trade mark "entall P". Both the trade marks are in respect of medicines for the same ailment for treatment of ear, nose and throat ailments. Respondent No. 1s trade mark is in respect of an ayurvedic medicine. The petitioners trade mark is in respect of an allopathic medicine.

(3.) IT appears from the order that no evidence was filed by either party before the Registrar who, however, heard the learned Counsel for the petitioner. It appears to have been the petitioners contention that they have been already using another medicine called "atenolol" since 1985 and there has been no confusion or deception during the course of its use. The learned Registrar had, however, observed that the two rival marks "atnol" and "entall P" are phonetically and deceptively similar and that the phonetic impact of the two marks when pronounced one after another will or may result in confusion and deception. He relied on a Calcutta case (A. I. R. 1979 Calcutta 133) where the trade mark "formiss" was held similar to "charmis" and a Delhi case reported in (A. I. R. 1982 Delhi 308) where a trade mark was also held similar to ESSCO.