LAWS(TMR)-2002-10-1

FOURTS (INDIA) LABORATORIES LIMITED Vs. GUFIC PRIVATE LIMITED

Decided On October 28, 2002
Fourts (India) Laboratories Limited Appellant
V/S
Gufic Private Limited Respondents

JUDGEMENT

(1.) ON 12.5.1982, a label mark consisting of word 'MOLY' was applied for registration by the above named applicants in respect of 'medicinal preparations' in class 5 under application No. 389904 under the provisions of the Trade & Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The user of the impugned mark was claimed since March, 1981. Eventually, the application was advertised before acceptance in the Trade Marks Journal No. 913 dated 16.6.87 at page 218.

(2.) M /s. Gufic Private Limited, Kabil Pore, Navsari, Gujarat and also Subhash Road - A, Ville Parle (East), Bombay -57, (hereinafter referred to as opponents) lodged a notice of their intention on Form TM -5 dated 11.9.1987 to oppose registration of the impugned trade mark 'MOLY' inter alia stating the grounds of opposition as follows: -

(3.) THE applicants, in their counter statement dated 19.5.1988 disagreed and disputed the allegations made in para 1, 2, 3 and 5 to 11 of notice of opposition terming the same as incorrect and calculated to mislead the Registrar. The applicants submitted that there is no prima facie identity or deceptive similarity between the applicants trade mark 'MOLY' and the opponents trade mark 'MOL' and as such there can be no conflict between the marks on the proper and reasonable application of the relevant provisions of the Act. They said that their trade mark 'MOLY' is distinctive and is used in respect of their product, which is schedule 'H' drugs and can be sold only on the prescription given by the registered medical practitioner. Hence, there is no question of deception or confusion and the impugned trade mark is eligible for registration, therefore, the grounds of opposition are totally frivolous, misconceived and unsustainable and do not disclose any valid reasons for denial to registration of the impugned trade mark 'MOLY'. The applicants prayed that registration of the impugned application may be allowed in exercise of his discretion by the Registrar and present opposition be over ruled.