STADMED PRIVATE LTD., CALCUTTA Vs. HIND CHEMICALS, KANPUR

JUDGEMENT

(1.) THIS is an appeal under S. 109 of the Trade and Merchandise Marks Act, 1958 - hereinafter referred to as the Act. It is directed against the order of the Assistant Registrar of Trade Marks dated the 3rd January, 1963. By this order the Assistant Registrar allowed the application of Messrs Hind Chemicals Limited -hereinafter referred to as the respondent company - under S. 20(1) of the Act and rejected the opposition which was by Stadmad Private Limited - hereinafter known as the appellant Company. The appeal came up for hearing in the first instance before P.C. Pandit, J. on the 20th November, 1963. The learned Judge by his order of the same date directed that the appeal be heard by a Division Bench in view of the provisions of S. 109(5), particularly as the questions involved were of considerable importance and were not free from difficulty.

(2.) THE facts shortly stated are that on 25 -9 -1957 the respondent -company made an application under section 18 of the Act for the registration of a trade mark consisting of the word 'Entozine' in cl. (5) (sic) in respect of their pharmaceutical preparation. This preparation has been put in the market for treatment of bacillary and amoebic dysenteries. This, medicine has been sold since 1952 under this trade name. In accordance with the proviso to S. 20(1) of the Act, the application was advertised. A notice of opposition was filed by the appellant -company on the 29th April, 1961. The challenge to the registration of the trade mark was on the following grounds: -

(3.) THAT the applicants were not the proprietors of the trade mark.