SUN PHARMACEUTICAL INDUSTRIES LIMITED Vs. CIPLA LIMITED

JUDGEMENT

(1.) This is the plaintiffs Motion for ad-interim relief. The plaintiff seeks an injunction restraining the defendant from using the trade mark Graniset, though admittedly the defendants registration of the trade mark is prior to its adoption and use by the plaintiff. The product in question is a drug and the marks are susceptible to registration under class 5 in respect of medical and pharmaceutical preparations. Both the plaintiffs and the defendants drug are used for treating Chemotherapy related nausea and vomitting (CINV), radiation therapy related nausea and vomitting (RINV) and post operative nausea and vomitting. The Active Pharmaceutical Ingredient (API) in the plaintiffs product is Granisetron and in the defendants product is Ondansetron. Apparently, the API being different, the products are treated differently and, according to the plaintiff, have to be administered over different duration. According to the plaintiff, the dosage in the frequency with which the two drugs are administered are different and they have different consequences. In the plaint, there is a recital that the plaintiff craves leave to refer to and rely upon the opinion/affidavit of Medical Practitioners which have, however, not been submitted. The contention of the plaintiff in this regard is that the deceptive similarity in the name and the trade mark is undesirable and may be dangerous. As stated earlier, the plaintiff has not relied upon any medical or pharmaceutical opinion.

(2.) Apart from the above, the plaintiff seeks an injunction mainly on the ground that the plaintiffs user of the trade mark Graniset is prior to that of the defendant, though the registration of the defendants trade mark is prior to the plaintiffs user.

(3.) The undisputed facts are that the defendant has adopted the trade mark Graniset in February 1998. Admittedly, at that time, no one was using this mark nor had anyone applied for registration. On 26.2.1998 the defendant applied for registration of the trade mark Graniset in class 5. No one including the plaintiff objected. After advertisement in the Trade Mark Journal, registration was granted on 4.2.2005. The plaintiff applied for registration of the identical trade mark Graniset in class 5 on 31.12.1999. The plaintiff appeared to have commenced sale of the pharmaceutical product under the mark Graniset on 1.12.2000. The defendant started their user in July 2005. The sale figures submitted by the plaintiff show that the sales have gone up from Rs.37.20 lakhs to Rs.121.30 lakhs in 2006.