JOHN WYETH AND BROTHERS LTD Vs. ADCCO LIMITED

JUDGEMENT

(1.) THIS is an application by the plaintiff in this suit for an injunction restraining the defendant, its servants and or agents from infringing the petitioner's trade mark 'aludrox' and in particular from using the offending mark 'al Hydrox' and/or from selling and/or offering and/or exposing or advertising for sale of any medicinal products under and/or bearing the mark 'al Hydrox'.

(2.) THE petitioner is the registered proprietor of the trade mark consisting of the word 'aludrox'. The said trade mark No. 10035 was registered on December 23, 1942 in respect of medicinal and pharmaceutical preparations in class 5. According to the petition the registration was renewed for a further period of 15 years from December 28, 1949 and is still valid and subsisting on the Register. The petitioner states in paragraph 3 of the petition that on July 21, 1951 Geoffrey Manners and Co. Ltd. , of Bombay was duly recorded as the registered user in India of the petitioner's said trade mark.

(3.) THE petitioner goes on to state that since the year 1938 it has been continuously using the said trade mark 'aludrox' throughout India and has been selling large quantities of medicinal products under the mark 'aludrox' in Calcutta and elsewhere. Medicinal products of the petitioner under the mark 'aludrox' is sold both in tablet form and in liquid form. But the bottles in both cases have labels with the word 'aludrox' in bold figures. In paragraph 5 of the petition it is stated that the word 'aludrox' is set out in labels written at the top in bold, permanent and capital letters. The bottles containing the medicine in liquid form also contain the words 'amphoteric Gel' while on the bottle containing the tablets the words used are 'dried Aluminium Hydroxide Gel'. In paragraph 6 the petitioner states that it has recently discovered that the defendant has started manufacturing a similar medicinal preparation and has put the same under the mark 'al Hydrox' in the Calcutta market within the jurisdiction of this Court and complains that the said mark is a colourable and/or deceptive imitation of the petitioner's trade mark 'aludrox' and/or is so identical with it and/or so nearly resembling it as to he likely to deceive: or cause confusion in the course of trade. Complaint is also made that the defendant respondent is distributing and supplying through its Sales Department in Calcutta within the jurisdiction of this Court the said medicinal preparations under the mark 'al Hydrox' as will be evident from the affidavits of two dealers filed along with the petition and relied on by the petitioner. The defendant respondent's mark 'al Hydrox' appears on labels affixed to the bottles of medicine of the defendant-respondent's manufacture as also on the carton or cover thereof. On the label the word 'al Hydrox' is written in bold, permanent and capital letters. The words 'amphoteric Gel of Aluminium Hydroxide' also appear immediately below the word 'al Hydrox'. The plaintiff complains that the use by the defendant-respondent of the said offending mark 'al Hydrox' on the label of the bottle containing the medicine and on the carton thereof and sale of the medicinal products in Calcutta within the jurisdiction of this Court constitute an infringement of the petitioner's said registered trade mark. The plaintiff contends that the visual and phonetic resemblance of the two word marks are very close and confusingly similar and by the sale of the medicinal goods under the said offending mark 'al Hydrox' the defendant likely to mislead the purchasers into the belief that in purchasing the defendant's goods they are purchasing medicine of the plaintiff's manufacture. Further it is said that the possibility of confusion and/or deception is very strong because the medicinal goods under the conflicting marks belonging to the same class or description are sold in the same shop over the same counter without the necessity of any doctor's prescription therefor and are being purchased by the same class of customers who require them for identical purposes. The petitioner claims damages for loss of reputation assessed at Rs. 20,000/ -.