HIMALAYA DRUG COMPANY Vs. GUFIC LIMITED

JUDGEMENT

(1.) ). By the above appeal from order the appellant is challenging the injunction order dated 10th January, 2003 granted by the II Extra Joint district Judge, Thane in a pending Suit, against the appellant, its Directors, partners, dealers, servants, representatives and employees from using the trade mark "shallaki" for its pharmaceutical and medicinal preparations. By the aforesaid order the appellant was granted a month's time to clear off its old stock and to file a statement regarding old stock within a week. The Trial Court has also expedited the hearing of the above suit.

(2.) THE brief facts are that the respondent No. 1 Gufic Ltd. is the registered proprietor of the trade mark "sallaki", having registration No. 385295 in Class 5. It appears that respondent No. 1 had applied to the registrar of Trade Marks, Mumbai, for registration of an original and distinctive trade mark "sallaki" on 13/01/1982 and ultimately registered on 31. 7. 1985 after inviting objections. Respondent No. 1 has been using the gum resin extracted from a herbal plant "boswellia serrata" since 1981, in the pharmaceutical and medicinal preparations for treating and healing the joint pains of human body. By a public notice objections were invited before registration of said trade mark "sallaki". Ultimately, the respondent No. 1's registration of trade mark was granted by the Registrar on 31. 7. 1985. The said registration was renewed from time to time and. respondent No. 1 has a valid registration of date. It is the contention of respondent No. 1 that in view of s. 28 of the Trade and merchandise Marks Act, 1958, it has an exclusive right to use the said trade mark in relation to their product. The said certificate is a prima facie proof of validity of registration. On 11/12/1997, respondent No. 1 had granted licence to its sister companies to use said trade mark for their products. Respondent No. 1 had published a caution notice regarding its trade mark.

(3.) THE respondent No. 1 after coming to know of infringement of their trade mark by the appellants, filed a Suit in the District Court on 30th April, 2002. It is the contention of respondent No. 1 that the appellants are manufacturing and marketing identical goods in tablet form under the identical trade mark by using the word "shallaki". Respondent No. 1 contends that the appellants are encashing upon the goodwill and reputation of respondent No. 1.