STRASSENBURG PHARMACEUTICALS LIMITED Vs. HIMALAYA DRUG COMPANY

JUDGEMENT

(1.) The question that arises for determination in these applications is whether the plaintiff, a manufacturer of anti reflux antacid, under the registered trade mark "EFACID", in an action for infringement of trade mark as well as of passing off is entitled to get an order of temporary injunction restraining the respondents their servants, agents and assigns from in any manner infringing the plaintiff's trade mark "EFACID" by selling antacid under the names "EFCID" or "EFCID-CA" or any other name deceptively similar there to.

(2.) There is no dispute that the trade mark "EFACID" has been duly registered by the Registrar of Trade Marks on June 2, 1986. By reason of the aforesaid fact, the petitioner has the sole and exclusive right to use the said trade marks to the exclusion of others.

(3.) The case made out by the petitioner in this application is that in or around October 2000 the petitioner came to learn that the respondent No. 1 had introduced an antacid formulation in tablet and in suspension form and was selling the same under the name "EFCID". The said name "EFCID" used by the respondent No. 1 was identical and/or deceptively similar to that of the petitioner's said product. By a letter dated October 25, 2000 the petitioner asked the respondent No. 1 not to infringe the said trade mark "EFACID". By a letter dated November 2, 2000 the respondent No. 1 informed the petitioner that they had already change the name of their product from "EFCID" to "EFCID-CA" and claimed that addition of the word "CA" as suffix would distinguish the same from the petitioner said trade mark.