Delhi High Court
Synthes Ag Chur vs Rob Mathys India (P) Ltd. on 1 March, 1996
Equivalent citations: 1996(38)DRJ51
Author: K. Ramamoorthy
Bench: K. Ramamoorthy
JUDGMENT K. Ramamoorthy, J.
(1) Plaintiffs have filed the suits for injunction.
(2) I.A. 3420/93 in Suit No. 708/93 by the plaintiffs against the defendant restraining the defendant from using the mark of the plaintiffs. I have to give a brief account of the case of the plaintiffs because this is not an usual case where owner of a trade mark claims some relief against a third party who sought to interfere with the use of the trade mark of the plaintiffs.
(3) The first plaintiff Synthes Ag Chur is a Company incorporated in Switzerland. Mr. R.J. Hartmann is the constituted attorney. Second plaintiff Mathys Limited Bettlach is also represented by Mr. R.J. Hartmann, who is the constituted attorney. After referring to the history of the development of components implants and instruments for the modern bone surgery the plaintiffs have stated in para 7 in the following terms :- "THE plaintiff No. I is the proprietor of the trademark AO/ASIF and a mark consisting of a device with the alphabet 'A' placed o a circular device representing the letter 'O' which together represent the initials 'AO' (hereinafter referred to as the "device mark"). The trademark Ao and the device mark are used all over the world in relation to orthopaedic implants and instruments including screws, plates, wires, etc., and has been used in India since 1979."
The First plaintiff has given the license of the exclusive rights to use Synthes technology including trade secrets, patents, trade names, logos and symbols to the second plaintiff for the territory of India. Apart from the relationship of licensor and licensee, the plaintiffs No. 1 and 2 are connected in business in other ways also. The plaintiffs are engaged in the manufacture of products for the bone surgery including screws, plates for internal fixation, intramodulary nails, external Fixtures and other relevant instruments required for the complete surgery. In or about the beginning of 1977 a collaboration agreement was thought of between Dr. Robert Mathys and Rein- hold Mathys and the defendant's directors M.P. Dhawan and S.M. Dhawan. The collaboration was executed on 15.4.77. As per the terms of the agreement, the defendant Co. was incorporated. It is the case of the plaintiffs that it was under this agreement that the aforesaid two persons rendered assistance to the defendant Co. with reference to the products mentioned above in India. In paragraph 10 the plaintiffs would state as follows :- "THE plaintiff No. 2 had been manufacturing and supplying its products under the trade mark AO/ASIF and the device mark directly from Switzerland to various customers and in particular to hospitals, surgeons and end users. Accordingly, the plaintiff No. 2 supplied the products under its trade mark AO/ASIF and the device mark to the defendant company during the period 1979 to 1991."
It is the further case of the plaintiffs that owing to extensive user since 1979 of the trade mark in India and the device mark they became well known and acquired tremendous goodwill. The plaintiffs have given the sales figures for the years 1988 to 1991 which are as follows :- YEAR SALES of locally manufactured goods Sales of imported (Rs)(Rs) 1988 58,00,000.00 90,00,000.00 1989 60,00,000.00 100,00,000.00 1990 61,00,000.00 . 240,00,000.00 1991 60,00,000/ 40,00,000.00 In paragraph 12, the plaintiffs have referred to their marks in the following terms :- "THE packaging of the products manufactured and sold by the plaintiff and the trade mark has a distinctive style, get-up, lay-out and artistic features. The packaging consists of a label with the device mark appearing thereon which constitutes an original artistic work within the meaning of section 2(c) of the Copyright Act, 1957 and the plaintiff No. 1 is the owner .of the copyright therein."
It is asserted by the plaintiffs that the defendant was permitted to use the trade mark AO/ASIF and the device mark in relation to the products on account of the financial and technical collaboration between plaintiff No. 2 and the defendants. It is further asserted by the plaintiffs that the supply of raw materials and semi-finished goods were being done by the plaintiffs to the defendant and that was how the defendant could use the trade mark of the plaintiffs for the goods supplied in India. It is the further case of the plaintiffs that the defendant omitted default in paying the amounts due to the plaintiffs and, therefore, by letter dated 24.6.92 the plaintiffs revoked all the agreements with the defendant and also offered to acquire all the existing stocks, finished goods lying with the defendants as on 31.8.92. A reference is made to certain proceedings under the Companies Act, 1956 in the plaint with which we are not at the moment concerned. The plaintiffs issued a notice on 12.11.92 demanding the defendant not to use the trade mark of the plaintiffs. On 12.3.93 the plaintiffs were surprised to learn that inspire of the notice by the plaintiffs the defendant was using the trade mark. According to the plaintiffs, the use of the trade mark would cause loss and injury to the business and reputation of the plaintiffs because the life saving products now marketed by the defendant are not up to the mark and they would cause danger to the lives of people. Therefore, the plaintiffs arc constrained to move this Court for the reliefs prayed for in the suit and for the interim reliefs.
(4) The defendant filed a written statement on 13.10.93 contending, inler-alia, that this Court has no local jurisdiction' or 'territorial jurisdiction' over the subject matter of the suit. That the defendant has been and is lawfully using the unregistered trade mark AO/ASIF along with the device mark comprising letter 'A' placed in a circular device representing the letter '0' in relation to its goods for the purpose of indicating a connection in in the course of trade between the said goods and the defendant as proprietor of the said trade mark in this country since 1979. The plaintiffs cannot take any action in the light of the language of the Section 27 of the Trade Marks Act, 1958. The plaintiffs were not the proprietors of the disputed trade mark/device mark in this country. The defendant has an exclusive right to the user of the disputed trade mark/device mark and the goodwill of the business. In paragraph 7 of what is called 'Preliminary Objections' the defendant takes the stand in the following terms :- "PLAINTIFFNo. 1 has admitted to having granted exclusive rights to use Synthes Technology and its trade marks etc. in India to plaintiff No. 2, effective 1.1.1992. I has therefore no cause of action at all sustain this suit. Plaintiff No. 2 had no right, title or interest in the trade mark/device mark inn dispute prior to 1.1.1992.. The answering defendant had already acquired proprietory rights to the use of the said marks in relation to its goods long before 1.1.1992."
In paragraph 7 of the written statement on the merits, the assertion by the defendant is in the following terms :- "THESE averments arc denied as wrong. The truth of the mailer is that the answering defendant is the owner in this country of the unregistered trade mark AO/ASIF along with the deice mark comprising letter 'A' placed in a circular device representing the letter 'O' by virtue of the user of the mark in relation to its goods for the purpose of indicating a connection in the course of trade between the goods and the defendant as proprietor to use th said mark. The answering defendants user of th said trade marks is well established in this country since 1979".
In paragraph 10 of the written statement on the merits, the execution of the agreement dated 15.4.77 is admitted. In paragraph Ii it is stated by the defendant that the plaintiffs do not own any trade mark in respect of this case in this country. It was the defendant who imported the plaintiffs products and marketed them. The defendant would admit the sales Figures given in the plaint which I have already extracted. In paragraph 16 of the written statement, the defendant would admit that it had filed a suit against Mathys Ltd. Bettlach for declaration that the plaintiffs are sole selling agents for the Mathys Ltd. and Synthes Ag Switzerland.
(5) The learned senior counsel Mr. Haksar for the plaintiffs submitted that the plaintiffs' trade mark are distinctive and have established a reputation, both in India and abroad. On facts, the plaintiffs have established a, prima facie, strong case and the balance of convenience is in favour of the plaintiffs. He further submitted that the plaintiffs Company's reputation in a foreign country is like an asset and needs protection. In the case of the plaintiffs, the trade marks in question have been registered in Switzerland, Great Britain, United States, Japan and have acquired a world wide reputation and goodwill. The plaintiffs have been using the mark for over 20 years.
(6) The learned senior counsel for the plaintiffs relied upon the following authorities to show that tie plaintiffs have been using the mark for a long time and, therefore, when the plaintiffs had revoked the agreement the defendant would cease to have any right to use the mark and, therefore, the plaintiffs are justified in coming forward with the relief of injunction against the defendant :- 1.Kaviraj Pandit Durga Dutt Sharma vs Navaratna Pharmaceutical Laboratories, . Ruston and Homby Ltd. vs. Zamindara Engineering Co., . HoffmannLa Roche and Co. Lid. vs Geoffrey Manners & Co. Pvt. Ltd., . Parle Products (P) Lid. vs. S.P. & Co., . Khemraj Shrikrishnadass vs Mis. Garg & Co., . Eldora vs Banarasi Dass, . M/s. ManoJ Plastic India vs Bhola Plastic Industries, Air 1984 Delhi 441. 8. Hindustan Radiators Co. vs Hindustan Radiators Ltd., . Ranbaxy Laboratories Ltd. vs Dim Pharmaceuticals Pvt. Ltd., . Hiralal Parbhudas vs. Mis. Ganesh Trading Company, . G Tc Industries Ltd. vs I. T. C. Ltd., . Rizla vs Biyant & May, (1986) Rpc 389.
(7) For the proposition that the plaintiffs can also rely upon transborder reputation, the learned senior counsel referred on the following authorities :- 1.C & A Modes, vs C & A (Water ford) - 1878 Fleet Street Reports 125. 2. J. C. Penny Co. Inc. vs. Peny's Ltd., 1979 Fleet Street Reports 29. 3. Blue Cross and Blue Shield Assn. vs Blue Cross Clinic, (1990) Industrial Law Reporter 92. 4. Apple Computer Inc. vs Apple Leasing & Industries, 1992 1 Arb Lr 93. 5. William Grant & Sons Ltd. vs Macdowell & Co. Ltd., 1994 Fleet Street Reports 690. 6. Whirlpool Corporation vs N.R. Dongre, . Yardley & Co. vs Kamal Trading Co. - Unreported judgment dated 5.10.87. 8. Kamal Trading Co. vs Gillette Uk Ltd., (1988) I Patent Law Reports 135. 9. The Scotch Whisky Association vs Pravara Sahakar Shakar Karkhanna Ltd., .
(8) In addition to this the Division Bench of the Madras High Court in the case called Tiger Balm's case had taken the view that transborder reputation is a relevant factor in a passing off action and that can be taken into account even for considering the interlocutory order. The Madras High Court followed the Metric Resources case, 1979 F.S.R. 571..
(9) The plaintiffs along with the plaint filed 21 documents. On 9.12.93 they filed seven documents. On 16.4.94 they filed five documents. On 27,2.95 the plaintiffs Filed affidavits from third partics. On 4.4.95 plaintiffs filed 12 documents.
(10) All the above documents, according to learned senior counsel, would vouchsafe the case of the plaintiffs. In the light of the stand taken by the defendant, which I shall refer to presently, I do not Find it necessary to refer to each of the documents.
(11) The case of the defendant is that plaintiffs I and 2 are not competent to file the suit. The powers of attorneys filed, which had been notorised, have not been proved in accordance with law that the plaintiffs arc guilty of violation of the provisions of the Foreign Exchange Regulation Act. They are guilty of violation of the provisions of the Companies Act, 1956 and, therefore, they have not established, prima facic, strong case for the grant of injunction and the balance of convenience is in favour of the defendant.
(12) The learned senior counsel for the defendant further submitted that the plaintiffs documents have not been attested in accordance with the provisions of the Notaries Act, 1952.
(13) On the question of the proof of representation of the plaintiff by Mr. R.J. Hartmann, I am not able to appreciate the case of the defendant. If it is contended that the plaintiffs, are not the successors-in-interest of the parties to the agreement dated 15.4.77 and,therefore, they must establish their identities and then only they can institute a suit one can understand the argument. Significantly, in the suit filed by the plaintiffs in the Jaipur Court, it is admitted by the defendant that the parties to the agreement dated 15.4.77 .had informed the defendant that the plaintiffs in this suit would be taking over the entire control, management and the product of the drugs. Therefore, the defendant was well aware that the plaintiffs arc the successors-in-interest of the parties to the agreement. Therefore, it is not as if the defendant was completely in dark about the constitution of the plaintiffs. The learned senior counsel for the defendant relied upon the judgments reported in Union of India vs Bakhshi Amrit Singh, and also Badat and Co., Bombay vs East India Trading Co., which deal with the scope of Section 78-B of the Indian Evidence Act, 1872. At the stage when I am deciding the interlocutory application, I do not think it necessary in the light of the attitude of the defendant to go into these aspects of the matter. Therefore, prima facie, I am satisfied that the plaintiffs are competent to maintain the suit through R.J. Hartmann.
(14) About the territorial jurisdiction of this Court, the argument by the learned senior counsel for the defendant is that the defendant is not selling any products here in Delhi, the defendant is not having any branch office within the jurisdiction of this Court; the suit against the defendant, as stated above, was filed in Jaipur court and, therefore, deliberately the plaintiffs have filed this suit to cause inconvenience and just to harass the defendant.
(15) I have perused the documents filed by the plaintiffs. In all the letter heads of the defendant Delhi address is given. They are bills showing the supply of material in Delhi and I do not want to enumerate at this stage each of the documentents for the purpose of coming to the conclusion that this Court has got territorial jurisdiction over subject matter of the suit. I am satisfied, prima facie, that this Court has territorial jurisdiction and cause of action had arisen within the jurisdiction of this Court and the defendant is having its office within the jurisdiction of this Court.
(16) On the question of user of the trade mark, as I extracted from the pleadings, the assertion by the defendant is that it has become the owner of the trade mark and the device. The learned senior counsel for the defendant relying upon National Bell Co. (In C.A. No. 1952/1966) and Gupta Industrial Corporation (in C.A. No. 1953/1966) v Metal Goods Mfg. Co. (P) Ltd. and another, Air 1971 S.C. 898, Consolidated Foods Corporation v Brandon and Co. Private Ltd., , Aktiebolaqet Jonkoping Vulcan v V.S.V. Palanichamy Nadar and others, and Sunder Parmanand Lalwani and others v Callex (India) Ltd., that as between two competitors who are desirous of adopting such a mark it is essentially a question who gets them first. It does not require any elucidation on facts and that it cannot be disputed by the defendant that it was the plaintiffs who came there first, to do the business. Once the agreement dated 15.4.77 was cancelled the defendant would cease to have any right at all to use the marks. The argument by the learned senior counsel that such a thing is within the contemplation of common law and not the Trade Mark Law is not at all tenable. Therefore, having regard to the facts and circumstances, I have no hesitation in coming to the conclusion that the plaintiffs have made out a prima facie strong case for the grant of injunction.
(17) Regarding the balance of convenience, what is contended for by the defendant is that since 1993 the plaintiffs did not have the benefit of interim orders by this Court and now they cannot seek to disturb the position and that is a factor which would tilt the scale in favour of the defendant. I am unable to agree. It is not the fault of the plaintiffs that the matter was not taken up for a considerable length of time. Court has to consider the case on the merits. Therefore, the balance of convenience cannot be said to be in favour of the defendant. When a prima facie strong case has been established, the time lag between the date of the presentation of the petition for injunction and the hearing of the application cannot be put against the plaintiffs. The products manufactured by the plaintiffs are very precious instruments and it is important to have strict vigil on the quality of these instruments. If the defendant is permitted to pass off the precious instruments, innocent persons coming to the hospital for bone surgery will be put to .irreparable loss and prejudice. Here, we are concerned with man's life with affected limbs. The defendant cannot be allowed to use the name of the trade marks of the plaintiffs and sell its products into the market. However, this will not prevent the defendant from selling its products to some other trade mark or device. There shall be an injunction restraining the defendant, its officers, directors, agents and servants from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in goods being instruments for bone surgery and orthopaedic implants including hips and joints under the trademark "AO/ASIF" or the device mark or any other mark similar to the trademark of the plaintiffs as may be likely to cause confusion, deception and may amount to passing off of the goods and business of the defendant for those of the plaintiffs.
(18) Coming to the suit No. 709/83 the case of the plaintiffs can be briefly noticed.
(19) The plaintiffs in suit No. 709/83 are the plaintiffs in suit No. 708/93 and the defendant is also the same. In paragraph 6 of the plaint the plaintiffs claim as to how they are entitled to the proprietorship in a registered mark, which reads as under :- "THE plaintiff No. 1 is the registered proprietor of the trade mark Synthes and a mark consisting of a circular device containing a graphic representation of a hip bone and the lower limbs (hereinafter referred to as the device mark). Both the trade mark Synthes and the device mark are used world-wide in relation to orthopaedic implants and surgical instruments as well as in India. The said marks arc registered in India as per the following details: Trade Mark Synthes Registration NUMBER279901 Date Of REGISTRATION02.05.1972 59 Class 10 Goods - Instruments And Implements and parts thereof included in Class 10 for use in Osteosynthesis. Trade Mark Device Mark Registration Number 252074 Date Of Registration 04.10.1968 Class 10 Goods - Instruments And Implements and parts thereof included in Class 10 for use in Osteosynthesis. The aforesaid registrations have been renewed and being part A registrations, more than 7 years old are conclusively valid under the provisions of Section 32 of the Trade marks and Merchandise Marks Act, 1958 (hereinafter referred to as 'the Act')."
In paragraph 7 it is mentioned as to how the second plaintiff acquired the rights. Para 7 reads as under :- "THE plaintiff No. I has licensed the exclusive rights to the use of the Synthes technology including its trade secrets, patents, trade marks, trade names, logos and symbols to the plaintiff No. 2 for the territory of India. Apart from the relationship of licensor and licensee, the plaintiff No. 1 and plaintiff No. 2 are also connected other ways. Thus, from time to lime, Dr. Robert Mathys of the plaintiff No. 2 has been making financial contributions to the AO/ASIF Foundation for the furtherance of its research activities. The plaintiff No. 2 has also been involved in researching solutions to the problems of all branches of bone surgery and orthopaedics and has been transferring its comprehensive know- how to medical and clinical practice. The plaintiffs manufacture a whole range of products including screws, plates for internal fixation, intra- modulary nails, external fixtures and other relevant instruments. The high quality of its products have earned it a category 'A' certificate from the Swiss Association for Quality Assurance (SQS)."
(20) The plaintiffs refer to the relationship between the plaintiffs predecessor-in-interest and N.P. Dhawan and S.M. Dhawan and the plaintiffs refer to the sales figures also.
(21) , paragraph 15 of the plaint, the plaintiffs have mentioned as to how they had to revoke the agreement in and by which the defendant became entitled to use the mark and also the products of the plaintiffs, in the following terms:- "TOWARDS the end of 1991, the plaintiffs received various complaints from customers about the quality of the defendant products and the plaintiffs became aware of various irregularities in their business. Moreover, the defendant had not paid large sums of moneys to the plaintiff which had accumulated to the extent of 2.5 million Swiss Francs on account of goods supplied on credit over the years. In the circumstances, the plaintiffs were left with no option but to revoke all agreements with the defendant including the defendants right to use the plaintiffs trade marks and trade names in relation to their products. This the plaintiff did through its letter dated 24th June, 1992 and stated that the plaintiff was willing to acquire all existing stocks of finished goods lying with the defendant as on 31st August 1992."
(22) It is the case of the plaintiffs that even after receipt of the letter dated 24.6.92 the defendant Co. attempted to continue to use the trade mark. According to the plaintiffs, a notice was issued on 12.11.92 making a demand on the defendant not to use the trade marks of the plaintiffs. It is asserted by the plaintiffs that on account of the vast and extensive use in several countries of the world the trade marks Synthes and the device mark have acquired tremendous reputation and goodwill in relation to orthopaedic implants and surgical instruments throughout the world. The sale of such important life saving instruments by the defendant under th trade name of the plaintiffs would lead to great confusion and deception and, therefore, the plaintiffs are entitled to the injunction. It is stated by the plaintiffs that on 10.3.93 the plaintiffs learnt about the use of the trade marks by the defendant. Hence the suit.
(23) The defendant taking the plea in the written statement in Suit No. 708/93 about the competency of the plaintiffs to institute this suit has asserted that the plaintiffs have not alleged misrepresentation or deceit by the defendant and the plaintiffs have admitted that the defendant is an established user of the disputed mark/device since 1977 and the plaintiffs have not been selling the products in this country and, therefore, the suit is a baseless one. It is asserted by the defendant that the defendant had acquired a proprietory right long before 24.6.92. It is alleged in the written statement that the remedy for the plaintiffs is under the Copyright Act, 1957, a civil remedy available in the Original Civil Courts under Section 9 Civil Procedure Code . and in the instant case the remedy is before the Subordinate Judge in the Union Territory of Delhi and not this Court. If the plaintiffs have terminated the agreement between the parties, the suit is wholly misconceived because if according to the plaintiffs the defendant had a right by virtue of a contract and once that contract is terminated the remedy available to the plaintiffs is only under the General Law and there cannot be any action for infringement. The defendant has also challenged the credentials of Robert Mathys. The defendant asserts that it is the owner of the trade mark.
(24) The .learned senior counsel for the plaintiffs relying upon the following cases submitted that the plaintiffs have a statutory right and no further evidence is required that the plaintiffs rights arc violative :- 1.Saville Perfumery Ltd. vs June Perfect Ltd., (194]) 58 Rpc 147. 2. Kaviraj Pandit Durga Dult Shanna vs. Navralna Pharmaceuticals Laboratories, . Ruston and Homby Ltd. vs. Zamindara Engineering Co., . Khemraj Shrikrishnadass vs M/s Garg & Co., . Mohan Meakin Ltd. vs Kashmir Distilleries Ltd., .
(25) The learned senior counsel for the defendant submitted that Suit No. 709/93 is liable to be stayed under Section 111 of the Trade Marks Act, 1958 as the defendant has applied for rectification under Sections 46 and 56 of the Trade Marks Act, 1958 for the removal of the marks from the Register. The rectification application is pending before the High Court of Calcutta,and that is a fact to be taken to be taken into in considering the grant of injunction. The learned senior counsel submitted under Section 32 of the Trade Marks Act,1958 that the trade marks were not distinctive of the goods of the registered proprietor and if a registered proprietor had assigned the use of such trade mark the exception in clause 'C' of Section 32 would apply and rectification can be made even after the expiry of 7 years from the date of the registration. The two exceptions provided for under Sections 35 and 46 would come into effect. It was further elaborated by the learned senior counsel that the trade marks in dispute deserve to be removed from the Register on two grounds ; (1) they were got registered by a foreigner without any bona fide intention on his part; that they should be used in relation to the goods by him and that there is in fact being no bona fide use of the trade marks upto a date one month before the date of the application under Section 46 Bettlach Trade Marks Act; (2) upto the date one month before the date of application under Section 46 of the Act, a continuous period of 5 years or longer had elapsed during which the trade mark was registered and was not made use of in relation to the goods for which the registration was.made by the proprietor. In other words, the trade mark was abandoned by the proprietor. It was submitted by the learned senior counsel for the defendant that the plaintiff No. I had never used trade mark in India, the firm registered in 1972. What all one gets from the plaint is, according to learned senior counsel for the defendant, instead of using these trade marks plaintiff No. 1 allowed Raw Mathys and Renold Mathys to make money by giving thousands to the defendant to use this trade mark and make the defendant to pay royalty to Raw Mathys and Renold Mathys. The plaintiffs were trafficking in trade mark within the meaning of Section 48 of the Act.
(26) The question of removal or rectification cannot be considered by this Court when admittedly the matter is pending before the Calcutta High Court. I am not able to appreciate the contention on behalf of the defendant that the plaintiffs have lost their right in the trade mark and the defendant has acquired right in the trade mark. The emphasis was made by the learned senior counsel for the defendant that the defendant has been using the mark for more than 16 years and selling the goods openly with or without the consent of the plaintiffs, that the defendant has also been importing similar goods from abroad and selling them on its own account and that is how the defendant has become an established proprietor of these trade marks. Therefore, according to the learned senior counsel the fact that one of the plaintiffs got all these two registered trade marks registered without any bona fide intention to use them and actually not using them would not affect the right of the defendant to use the trade mark as an established proprietor. The learned senior counsel for the defendant relied upon the following cases :- 1.American Home Products Corpn. vs Mac Laboratories Pvt. Ltd. and another, . Sunder Parmanand Lalwani and others vs. Caltex (India) Ltd., . 3. Consolidated Foods Corporation vs Brandon and Co. Private Ltd., . 4. Aktiebolaget Jonkoping Vulcan vs V. S.V. Palanichamy Nadar and others, . In the Matter of Ducker's Trade Mark, (1928) 45 Rpc 105. 6. Bowden Wire Ltd. v Bowden Brake Company Ld. (1913) 30 Rpc 58 CA. 7. T. oerti AG. vEJ. Bowman (London) LD., Page, W. & Coy. (Turmix Sales) LD., H.G.H. Fransworth, S.S. Pames and F.A.Marlow, (1957) Rpc 388. 8. Lissen Ld. v Mutton (sued as Wholesale Components Company, (1929) 46 Rpc 11. 9. I. Batt and Co., 15 Rpc 262. 10. Aktiebolaget Manus v RJ. Full wood & Bland, (1949) Ialler 205. 10. National Bell Co.(ln CA. No. 1952/1966) and Gupta Industrial Corporation (inCA. No. 1953/1966) vs Metal Goods Mfg. Co. (P) Ltd. and another, Air 1971 S. C. 898.
(27) I have gone through all the cases and I do not want to discuss the facts in each one of these cases because the principles laid down in these cases arc not of any assistance to the defendant.
(28) In my view, the plaintiffs have made out a, prima facie, strong case and the balance of convenience is also in their favour. As I had already adverted to, we arc concerned with the very delicate instrument which are to be implanted in human body and unless the Doctors are provided with genuine materials innocent people will suffer. As a matter of fact, the Doctors and the para medical staff may not be able to distinguish between the genuine and the spurious products in the market. In the interest of general public, the defendant cannot be allowed to use the trade marks and try to use the name and reputation of the plaintiffs for its business.
(29) Therefore, there shall be an injunction restraining the defendant, its officers, directors, agents and servants from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in goods being instruments for bone surgery and orthopaedic implants under the trade mark 'SYNTHES" or any other mark similar to the trade mark of the plaintiffs amounting to infringement of the trade mark or from doing any other thing as may be likely to cause confusion, deception and may amount to passing off of the goods and business of the defendant for those of the plaintiffs. 28.I.A.3420/93 in S.No. 708/93 and IA.3419/93 in S.No. 709/93 filed by the plain- tiffs are allowed. There shall be no order as to costs. S.No. 708/93 & S.No. 709/83 Post the matter on the 19th of August 1996 for further directions.