PARKE, DEVIS AND CO. Vs. PANASEN LABORATORIES

JUDGEMENT

(1.) The appellant company as plaintiff has instituted Title Suit No. 54 of 1979 against the respondent in the court of the District Judge, Alipore, inter-alia, for permanent injunction to restrain the defendant-respondent from using the trade mark, KOLIDRYL or any other visual or phonetic equivalent of the said mark and for restraining the defendant from using any trade mark in relation to its goods ending with the suffix DRYL or any other deceptively or confusingly similar suffix. The appellant in the said suit also prayed for a decree for damages against the defendant. the learned additional District Judge, 10th Court, Alipore has dismissed the plaintiff-applicants application for temporary injunction for restraining tho defendant-respondent from using the read trade mark, KOLIDRYL, till the disposal of the laid suit. The plaintiff, being aggrieved thereby, has preferred this appeal and has filed it application for interim order till the disposal of the same. By consent of parties, we have analogously heard the said appeal and the application.

(2.) The appellant company which has been incorporated in the United States of America since 4th July, 1963 is the registered proprietor of the merle DRYL for pharmaceutical, medicinal and veterinary preparation. the appellant is also the registered proprietor of the mark BENADRYL. CALADRYL, AMBODRYL, ERGODRYL, BODRYL and CAMBODRYL for pharmaceutical and medicinal preparation. According to the appellant, in Nov., 1976 it had come to know that the respondent firm had been manufacturing and selling an expectorant under the name, KOLIDRYL and inspite of repeated objections made on behalf of the appellant, the respondent had continued to use the said mark. On Jan., 1977 tho respondent had made an application to this Registrar under Sec. 18 of the Trade and Merchandise Marks Act, 1958 for registration of the mark, KOLIDRYL. The Registrar having accepted the said application on Aug. 1, 1978 caused the said application to be advertised. On Aug. 28, 1978 the present appellant had filed in opposition to the respondent's application for registration of the mark, KOLIDRYL. The said proceeding is Hill pending

(3.) There is some substance in the submission made on behalf of the appellant that for deciding whether or not the plaintiff-appellant has a prima facie case for temporary injunction, the learned Additional District Judge has mainly considered whether these was any reasonable possibility of a confusion between the mark, CALADRYL. which is a lotion manufactured by the plaintiff for external use and the mark KOLIDRYL, which is an expectorant manufactured and sold by the defendant. According to this court below, only phonetic resemblance was not a sufficient ground for granting temporary injunction in the plaintiff's favour. The court below hag held that the drug manufactured by the defendant comes within the Schedule 'L' of the Drug Rules and could be sold only by the registered dealers on preemption of registered medical practitioners. Further, according to the court below, prima fade, the word DRYL is being used as suffix of a large number of products manufactured by different companies. The defendant had been marketing its products since 1971 and the balance of convenience was not in favour of granting temporary injunction against the defendant. the court below, however, found that on the part of the plaintiff, there was no acquiescence.