RAMANLAL Vs. LALITKUMAR

JUDGEMENT

(1.) This is a petition under section 482 of the Criminal Procedure Code or in the alternative a revision petition against the order dated 9th April 1985 passed by the Additional Sessions Judge, Greater Bombay raises an interesting question about interpretation of Sec. 87 of the Trade and Merchandise Marks Act, 1958 (hereinafter called the Trade Mark Act)

(2.) Brief facts leading to the filing of the present petition may be stated as follow : The petitioners are partners of Eupharma Laboratories, which is a registered partnership firm carrying on business of manufacture of medicinal goods. Respondent No. 1 Lalitkumar is the Company Secretary of Pfizer Incorporated of U.S.A., a public limited Company incorporated under the Indian Companies Act, 1913. The respondent on behalf of Pfizer Incorporated filed a criminal complaint case before the trial Magistrate on 22nd March 1982 alleging that the present petitioners have committed an offence punishable under Sections 78 and 79 of the Act. It was the case of the complainant that Pfizer Incorporated is the owner of trade mark Vibramycin manufactured by the Pfizer Company in several countries around the world under the same trade mark and that the said trade mark is also duly registered in India. It is further their case that registration has been renewed up-to-date and is valid till 1988. It was alleged in the complaint that the present petitioners accused had unauthorisedly used the said trade mark by manufacturing the same identical medicine and packaging, selling and distributing it in India. Thus Pfizer Company holds title to the work Vibramycin as trade mark which is duly registered in India and the accused having unauthorisedly used the said trade mark of their product and by selling the said product under that trade mark have committed the offences punishable under Sections 78 and 79 of the Trade Mark Act.

(3.) The following statement of fact was made on behalf of the applicant accused, which is not disputed on behalf of the complainant, viz., that on the next day of the filing of the complaint the Pfizer Company also filed on 23-3-1982 a civil suit before the High Court against the present accused for infringement of their trade mark Vibramycin, that is Civil Suit No. 458 of 1982. On 29-4-1982 the accused persons filed Miscellaneous Petition No. 375 of 1982 for rectification of the trade mark register and for expunging the entry of Vibramycin in favour of Pfizer from the register. It is also not disputed that the High Court on its Original Side rejected the application for interim injunction restraining the accused persons from manufacturing and selling the products under the trade name Vibramycin. The Pfizer Company preferred an appeal before the Division Bench. This appeal was also rejected. In the meantime Miscellaneous Petition No. 375 of 1982 filed by the accused persons before the High Court was admitted and rule was issued and the same is pending for hearing.