HAHNEMANN LABORATORY LTD Vs. HAHNEMANN INDIA LABORATORIES

JUDGEMENT

(1.) IN a suit for a decree of perpetual injunction restraining the defendants from infringing the trademark "Arnimax" and passing off goods under the said trademark, this application has been filed for interim reliefs. The case of the petitioner is that it is a family concern and is the owner of the registered trademark "Arnimax" for its medicinal and pharmaceutical preparation under Clause- 5 of the fourth Schedule since 2003. The silhouette of the lady with black hair has come to be identified with the product of the petitioner and the said registered trademark "Arnimax". IN fact by virtue of the aforesaid the petitioner has acquired a copyright in the artistic work of the trade dress.

(2.) IN the 1st week of October, 2009, the petitioner came to know that the respondents have infringed its trademark by using the word "Arnimax" on its products coupled with the trade dress and thereby has infringed the registered trademark and passed off its products as that of the petitioner. Accordingly, C.S. 360 of 2009 was filed and an interim order passed on 19th February, 2010 restraining the respondent from dealing with, offering for sale, advertising, marketing or publicising the impugned trademark "Arnimax". Such order was continued on 8th April, 2010 and direction given for filing affidavits. An affidavit has been filed and a No Objection Certificate dated 9th December, 2002 has been relied upon by the respondent. Such No Objection Certificate was given by one Das Homoeo Laboratory (P) Ltd. No certificate of the petitioner has been produced. IN fact on a comparison of the signature of the person who is the signatory to the certificate with the signature in the INdenture of Lease dated 25th March, 1988 the said signature will not tally. The licence given to Das Homoeo Laboratory (P) Ltd. by the owners of the registered trademark did not include the registered trademark "Arnimax". Therefore, neither Das Homoeo Laboratory (P) Ltd. nor anyone deriving a right thereunder could have issued the No Objection Certificate. No document evidencing sale, registration or user has been produced by the respondent therefore the case of infringement made out subsists and the order dated 19th February, 2010 and subsequent orders passed be confirmed. Counsel for the respondent opposing the said applications submits there has been suppression of facts as the No Objection Certificate to use the mark "Arnimax" so also dealership has not been disclosed.

(3.) HAVING considered the submissions of the parties, the petitioner is the registered owner of the trademark "Arnimax" since 2003. Such trademark along with the get-up and trade dress of the label has come to be identified with the petitioner's products.