KOPRAN CHEMICAL CO LTD Vs. SIGMA LABORATORIES

JUDGEMENT

(1.) This Notice of Motion is for an injunction in a passing off action. There is, in the Notice of Motion, a prayer based on infringement. However, Mr. Tulzapurkar has very fairly not pressed, at this stage, that prayer as the Plaintiffs' application for registration of their mark "ATEN" is still pending.

(2.) The Plaintiffs claim that they have been using the mark "ATEN" since 1985. The figure of sales are in Ex. E to the Plaint and the amounts spent in advertisements is in Ex. D to the Plaint. Mr. Tulzapurkar submits that immediately on coming to know of Defendants' use of mark "BETEN", they gave notice on 22nd January 1990 and then filed this suit.

(3.) An ad-interim injunction was granted on 9th April 1990. It was however stayed by the Appellate Court and I am informed that the Defendants' Appeal was finally allowed. Mr. Tulzapurkar submits that the two marks "ATEN" and "BETAN" are both visually and phonetically similar. He submits that both are for the same ailment. He submits that the mark "BETEN" has been adopted with knowledge of Plaintiffs mark. He submits that this is clear because the Defendants, who are in the same filed, were bound to know that the Plaintiffs are using the mark. He submits that there is likelihood of confusion and deception. He submits that merely, because both these products are only available on doctor's prescription does not mean that there would be no confusion or deception.