MACLEODS PHARMACEUTICALS LTD Vs. SWISSKEM HEALTHCARE

JUDGEMENT

(1.) The present Suit is filed by the Plaintiff against the Defendants for infringement of the Plaintiff's registered trade marks "PANDERM" and "PANDERM +" bearing registration Nos.1309828 and 1849407 respectively both in Class 5 and passing off. The Plaintiff has inter alia sought a permanent order and injunction against the Defendant from using the trade mark POLYDERM +, which according to the Plaintiff is deceptively similar to the Plaintiff's registered trade marks. Prayer clause (a) of the Plaint is reproduced hereunder:

(2.) Since the beginning of this Suit, the Defendants have neither entered their appearance, nor contested the Suit, nor the Notice of Motion, despite the service of papers and proceedings and Writ of Summons upon them. The Defendants have not filed any Written Statement. In view thereof, the Suit has proceeded exparte. There is no ad-interim or interim injunction order operating against the Defendants till date. Though, the Plaintiff had moved an application seeking adinterim injunction against the Defendants, this Court (S.J. Vazifdar, J. as he then was), vide its Order dated 14th June 2011, refused to grant ad-interim injunction in favour of the Plaintiff solely on the ground that the two rival marks PANDERM and POLYDERM are not deceptively similar. When this Suit came up before me for hearing for the first time, I had expressed my first impression that - there is no similarity between the rival trade marks PANDERM and POLYDERM. Mr. Behl, Ld. Advocate for the Plaintiff, however, insisted that I should reconsider the aspect of similarity between the rival trade marks particularly in view of the fact that the Defendant has not contested the Suit at all, to which I agreed.

(3.) The heart and soul of any trade mark dispute, such as the present one, is mostly dependent upon one and only one aspect i.e. whether the trade mark used by the Defendant is identical with and / or closely and / or deceptively similar to the Plaintiff 's trade mark and consequently whether there is a possibility of confusion or deception. If ultimately, it is held that there is no deceptive similarity between the rival trade marks, then the matter really ends there and the question of confusion or deception does not arise. No amount of evidence adduced to show prior user or reputation of the Plaintiff's mark can be of assistance to the Plaintiff in such a situation since the whole basis of an infringement and / or passing off action, such as the present one, is dependent on the Court coming to a conclusion that there is deceptive similarity between the rival trade marks. If the rival trade marks are held not to be identical or deceptively similar, there cannot be any cause of action for either infringement or passing off.