UPENDRA NATH BRAHMACHARI Vs. UNION DRUG CO LTD

JUDGEMENT

(1.) This is a Rule granted by my learned brother Mr. Justice Gregory calling upon the defendant Company to show cause why an injunction should not be awarded against them restraining them, their servants and agents, until the determination of this suit, from using the name "Urea Stibamine" and selling an antimony compound manufactured by them under the said name, and from selling or offering or exposing or advertising for sale or procuring to be sold the said compound, under the name of "Urea Stibamine" or with a get-up calculated and likely to deceive the public into thinking that the said compound is of the manufacture of the said plaintiff, Upendranath Brahmachari, or from in any manner passing off their goods as those of the plaintiffs. This Rule came on for hearing before me on the 15th, 16 and 17th days of March, when after hearing Counsel on both sides reserved judgment until this morning.

(2.) The facts giving rise to the present litigation and to the application on which the present Rule was issued as far as I can make out from the affidavit with their annexures used before me and from what has been opened before me by learned Counsel on both sides are shortly stated as follows: The plaintiff Dr. Upendranath Brahmachari who is a well-known and distinguished medical practitioner in Calcutta, has since 1913 been engaged in researches for discovering a cure for Kalaazar. The introduction of a successful treatment for Kala-azar is a matter of the first importance to the Province of. Assam and Bengal: where Kala-azar is largely prevalent, and it is said that Dr. Brahmachari discovered in 1921 an antimony compound for the treatment of Kala-azar. It appears that the Firm of Von Heyden of Dresden had previously prepared and placed on the market an aromatic compound of antimony, namely, sodium para-acetyl-amino-phenyl stibiate. This compound had first been used in Italy by Caronia (1916) and later by Spagnolio (1920). Their results had been promising but by no means absolutely convincing. It was tried in England by Manson-Bahr who used it in one case of Kala-azar and reported favourably on it. In the same year Mackie (1921) obtained supplies of this compound from Messrs. Allen and Hanbury's Ltd., through whom it had been placed on the market under the trade name of "Stibenyl" The results, however, were not encouraging: it was about this time (1921) that Dr. Brahmachari, who as stated above had been working for some time past on the antimony compounds, produced and tested, a number of aromatic compounds of antimony and with some of them he obtained good results: he reported that with the compound which he had named "Urea Stibamine" his results were exceptionally good.

(3.) He treated a number of cases with this substance in 1921 and reported the results of the treatment of eight cases in the Indian Journal of Medical Research, edited among others by the Director-General, Indian Medical Service, for October 1922. About the beginning of the year 1923 Dr. Brahmachari arranged to produce "Urea Stibamine" on a large scale and was able to supply it to other workers for trial. Major Short, who is a member of the Kala-azar Commission, tried it in a number of cases in Shillong and reported very favourably. Other workers whose letters are set but as annexures to the petition of Dr. Brahmachari, gave to this new cure "Urea Stibamine" an extensive trial and reported favourably on this particular, antimony compound. It was now (1923-24). quite clear that a number of cases of Kala-azar that had been treated with "Urea Stibarmine" were recovering much more rapidly and with less treatment than would have been necessary had they been treated with antimony tartrates. Dr. Brahmachari states that he invented and coined the name of "Urea Stibamine" for the purposes of his business of manufacture and sale of the said antimony compound and has all along used the name. He states farther that the antimony compound manufactured and sold by him is well known to the public generally by the name of "Urea Stibamine" and is indeed asked for by the public under that name. He states also that the-said name of "Urea Stibamine" used in connexion with the said antimony compound for the treatment of Kala-azar is always understood by the public generally to mean and refer to the antimony compound manufactured and sold by him. Since 1923 Messrs. Bathgate and Co. have been and are acting as sole distributors in the market of Dr. Brahmachari's antimony compound for the treatment of Kala-azar. Mr. Lunan, who is a partner in the Firm of Messrs. Bathgate & Co., states as follows: "That I say that the plaintiff's aforesaid antimony compound has an extensive sale in and outside Bengal and has acquired a great reputation in the market and it is well-known under the name of "Urea Stibamine" and is asked for by the public under the said name. That I say that as sole distributor in the market of the plaintiff's antimony compound I have since 1913 been and am still receiving orders from all parts of India for the supply of the plaintiffs antimony compound. In all such orders the words Urea Stibamine are used and I say that in the market the words Urea Stibamine have come to mean the antimony compound manufactured and sold by the plaintiff Upendra Nath Brahmachari."