Document Fragment View

Matching Fragments

1. Plaintiff in C.S. No. 58/03 on the file of the Original Side of the High Court, Madras, is the appellant in O.S.A. No. 258/03 and the defendant in the said C.S. No. 58/03 is the appellant in O.S. No. 360/03. The said C.S. No. 58/03 was filed by the plaintiff for passing off action against the defendant and along with the civil suit, he also filed O.A. No. 95/03 for injunction, pending the suit, restraining the defendant/respondent from dealing with the medicinal and pharmaceutical preparation under the trade mark "PIO-15" and "PIO-30", which according to him are identical with and deceptively similar to the plaintiff's trade mark "PIOZ-15" and "PIOZ-30".

23. The next contention of the learned senior counsel for the appellant was that the learned single Judge committed an error in coming to the conclusion that the word "PIO" sounds different from the word "PIOZ" is incorrect and they are not phonetically different, not identical and they are deceptively similar and, therefore, passing off action against the defendant could be maintained. Per contra, the learned senior counsel appearing for the defendant/respondent contended that "PIO" and "PIOZ" are phonetically different and there is no deceptive similarity and the word is a publici juris and the plaintiff has no monopoly over it.

35. Similarly in Reckitt & Coleman Ltd, v. Medicross Pharmaceuticals Ltd., 1994 IPLR 31 (Bom)), Griffon Laboratories (P) Ltd. v. Indian National Drug P. Ltd., 1989 IPLR 9, Cadila Laboratories Ltd. v. Dabur India Ltd. 1997 PTC 417, while considering the brand names "DISPRIN" and "MEDISPRIN", "SORBILENE" and "SORBITONE", "MEXATE" and "ZEXATE" respectively, the Courts have held that there is no deceptive similarity. The above three cases deal with chemicals.

36. In two other judgments in Aviat Chemicals Pvt. Ltd. v. Intas Pharmaceuticals Ltd. (Cases & Materials T 400) and Anjendra Kumar Agarwal v. Kruzer Herbals, 1996 PTC 501, the Supreme Court, while considering the brand names "LIPICARD" and "LIPICOR" and "MENSCURE" and "MENSUROL", respectively relating to ailments, held that the names are not deceptively similar. Similarly in SBL Ltd. v. Himalaya Drug Co., 1997 PTC 540, "LIV-52" and "LIV-T" it was held that the brand names are not deceptively similar.

37. This Court cannot also forget the fact that in Brista Myers v. Bristol, 1968 RPC 259, "BRISTACYN" and "BRISTACIN" were held to be deceptively similar. Similarly, in the judgments rendered in Aristav v. Rysta Ltd., 1945 (62) RPC 65, Anglo French Drug v. Belco Pharma, , Ranbaxy Labs v. Dua Labs, , American Home Products v. Lupin Labs, 1996 IPLR 61, it was held that the brand names "ARISTAC" and "RYSTA", "BEPLEX" and "BELPLEX", "CALMPOSE" and "CALMPROSE", "TOROLAC" and "ROLAC", in the respective cases are deceptively similar. So it is clear that there are judgments on both sides and it is for this Court to approach the question from the point of view of a man of average intelligence and imperfect recollection to find out whether in a given case the words are deceptively similar and whether an unwary purchaser of average intelligence and imperfect recollection will be deceived. It should be borne in mind that the object of the enquiry in deciding the question in the ultimate analysis is, whether the mark used by the defendant as a whole is deceptively similar to that of the registered trade mark of the plaintiff.