NUCRON PHARMACEUTICALS PVT LTD Vs. INTERNATIONAL PHARMACEUTICALS

JUDGEMENT

(1.) The suit has been filed by the plaintiffs as a passing off action to restrain the defendants from passing off their pharmaceutical preparation sold under the trademark "Selmax" for the pharmaceutical preparation of the plaintiffs under the trademark "Sepmax".

(2.) Plaintiff No. 1 manufactures a pharmaceutical drug under the mark "Sepmax", which is marketed and distributed in India by the second plaintiff. Plaintiffs' product is used as antibiotic for treatment of lower respiratory, urinary or genital tract infections,otitis media, sinusitis, skin and wound infections, some fungal and protozoal infections. Plaintiffs' product has been in the market since or about the year 1991, as evident from the relevant entry in the Indian Pharmaceutical Guide, 1991. Exhibits 'B' and 'C' show the considerable amount of sale and promotional expenses incurred by the plaintiffs right from 1989. The plaintiffs came across an advertisement on 7th May, 1992 in the newspaper advertising the defendants' product under the mark "Selmax" as First Line Therapy for Parkinsonism. The plaintiffs obtained the product from a chemist in Bombay on 17th December, 1992 (Exhibit 'I-I') and issued a Registered Notice to the defendants on 19th December, 1992, calling upon them to cease and desist from manufacturing their product under the offending mark and made several requisitions upon them as contained in the said notice. The defendants' by their reply dated 5th January, 1993, stated that they had filed a suit in the City Civil Court at Ahmedabad on 4th January, 1993 against the plaintiffs and sought appropriate reliefs therein. The plaintiffs lodged the present suit on 25th February, 1993 and have sought ad-interim order by the present draft Notice of Motion.

(3.) A reference to the plaint filed by the defendants in Reg. Civil Suit No. 38 of 1993 pending before the City Civil Court at Ahmedabad would make it clear that the defendants herein have contended there that the present plaintiffs' mark is deceptively similar to their mark and is likely to cause confusion.