BIOCHEM PHARMACEUTICAL INDUSTRIES Vs. BIOCHEM SYNERGY LIMITED

JUDGEMENT

(1.) THE plaintiffs have filed a suit for perpetual injunction alleging infringement of their registered trade mark and passing off and have also prayed for decree for rendition of accounts against the defendants. Along with this suit the present notice of motion has also been filed for an interim injunction against the defendants for restraining them from committing acts of infringement of the said mark and passing off.

(2.) FACTS , relevant for the disposal of the notice of motion, may first be noticed. The first plaintiff Biochem Pharmaceutical Industries is a registered partnership firm and the second plaintiff Biochem Pharmaceuticals Pvt. Ltd., is a private limited company promoted by the first plaintiff. Both the plaintiffs are engaged in manufacture and sale of pharmaceutical and medicinal preparations and drugs. The plaintiff No.1 is engaged in the said business since 1961 and as far as the plaintiff No.2 is concerned, from 1976 as a licensee of the plaintiff No.1. The plaintiffs allege that the word 'Biochem' forms an integral part of the corporate name and trading style of the plaintiffs. The word Biochem is also the housemark of the plaintiffs. The plaintiffs allege that their trademark appears on all the products manufactured and marketed by them. The mark Biochem has been registered as a trademark of the plaintiff No.1 under the Trade and Merchandise Marks Act, 1958 ("Act" for short) bearing No.201091 -B in Part B register in respect of pharmaceutical and medical preparations falling under class 5 of the fourth schedule of the said Act. The plaintiffs allege that they have been using the mark Biochem for the past 33 years. and by virtue of such long user, the said mark has become distinctive of the plaintiffs' goods. The plaintiffs' products bearing the said mark have acquired a vast reputation and goodwill and are associated by the traders and members of the public exclusively with the plaintiffs. The plaintiffs allege that they are incurring large expense of lakhs of rupees by way of advertisement and promotional expenses and the sale of their products under the trade name Biochem is over twenty crores.

(3.) IT transpires that initially the plaintiffs had taken up the matter with the Registrar of Companies, Madhya Pradesh. By their letter dated 12th February, 1990 the plaintiffs lodged a formal complaint under sections 20 and 22 of the Companies Act, 1956, requesting the Registrar to invoke the powers under the said provisions and to direct the defendants to change their name. It seems that there was no response from the Registrar and therefore reminders were sent by the plaintiffs. Finally, the Regional Director of Companies, Western Region, Ministry of Industry by his letter dated 7th January, 1991 informed the plaintiffs of his inability to interfere under section 22(1)(b) since the defendants were registered for a period of more than 12 months. It seems that by that time the defendants had commenced their production some time in November, 1990. Therefore, the plaintiffs filed the present suit and the notice of motion on 29th April, 1992 claiming various reliefs for infringement of their registered trade mark and passing off.