CHARAK PHARMACEUTICALS Vs. M J EXPORTS PVT LTD

JUDGEMENT

(1.) This is an appeal preferred by original Respondent No.1 in Miscellaneous Petition No.42 of 1989 to challenge the legality of judgment dated February 6, 1990 delivered by learned Single Judge. By the impugned judgment, the learned Judge set aside the order dated April 19, 1989 passed by the Assistant Registrar of Trade Marks and directed that the Assistant Registrar should register the trade mark of the Respondent No.1 with the condition that Respondent No.1 shall not be entitled to use the mark 'MJTONE' on any preparation used for treatment of Leucorrhoea. The facts which gave rise to the passing of this order are as follows:

(2.) On August 10, 1983, Respondent No.1 filed an application under Application No. 409450 to registrar a trade mark 'MJTONE' in respect of specification of goods which reads as: "Pharmaceutical and Medicicinal Vitamin preparations".

(3.) The application was accepted for registration in Part 'B' subject to disclaimer of the word 'TONE' and was delivered in Trade Marks Journal on July 1, 1987. On July 29, 1987, the appellants filed notice of opposition on various grounds. The appellants claimed that the appellants and the predecessors-in-title are one of the leading manufacturers of medicinal and pharmaceutical preparations for several years. It was further claimed that the Appellants are registered proprietors of trade mark 'M-2 TONE' in Class 5 in respect of pharmaceutical and medicinal preparations and the registration is valid and subsisting. The appellants also claimed that the registered trade mark was in use since many years and the goods bearing the trade mark command extensive sales. The appellants claimed that the goods bearing trade mark 'M-2 TONE' are sold throughout the length and breadth of the country and the mark has acquired reputation and as such the appellants are exclusively entitled to use the mark. The appellants also claimed that the mark proposed to be registered by the Respondent No.1 is visually and phonetically similar to the registered trade mark of the appellants. It was further claimed that the mark set up by Respondent No.1 is not distinctive and Respondent No.1 are not the proprietors of the mark. The Respondent No.1 filed counter statement which consists of general denials. The parties led evidence in support of their claims and thereafter the Assistant Registrar by Order dated April 19, 1989 upheld the opposition filed by the appellants and the application for registration of mark 'MJTONE' was refused.