GLENMARK PHARMACEUTICALS LTD Vs. BAL PHARMA LTD

JUDGEMENT

(1.) Heard.

(2.) The Plaintiff a pharmaceutical company took out this Notice, of Mation for preventing the Defendants' use of certain trade mark, for their product. The case at the Plaintiffs is as under.

(3.) It is common ground that the products of both the parties are medicinal preparation containing inter alia an antibiotic drug by name "cefpodoxine proxefil". In reply to the Notice of Motion, the Defendant No. 1 denied that the name and label of their mark is similar or identical to the Plaintiffs' mark. They also asserted that part of the Plaintiff's mark "ketpod" is derived from the generic name of the medicine contained in it and so there is nothing distinctive in it. They asserted that it the products are prescribed in writing, there would be no confusion for the users. They added that they submitted applications for registration of their mark "zetpod" on 30th April, 2008 and 15th October, 2008 and that they are pearling. They further stated that they had no knowledge whatsoever about the Plaintiffs' trade mark and they said that they conceived, invented and used this mark "zetpod" honestly. They also stated further that alter they started using this particular mark, they took search in the record of trade mark register for availability at the mark "zetpod". They said they even conducted a market survey and got themselves satisfied that no medical or pharmaceutical product of similar description was available bearing the trade mark "zetpad". They then said that the prefix "z" to the generic name of the medicine makes their mark unique. They said they have family of trade marks beginning with letter "z". The Defendant No. 1 also pointed out that the packaging and art work of the products is different and so there would be no confusion between the two marks. They pointed out that there are numbers of other products containing the same antibiotic "cetpodoxine proxetil" which has similar trade mark giving list of eleven marks.