Indian Kanoon - Search engine for Indian Law

18. In my view, the present case is covered entirely by the Division Bench decision in Astrazeneca (supra). However, it was sought to be IA 2226/2007 in CS(OS)361 /2007 Page No.11 of 17 contended on behalf of the defendant that the present case is different from the Astrazeneca case. It was contended that in Astrazeneca (supra), the plaintiff therein was not the first to have adopted and used the prefix ‗MERO' and that there were other companies using ‗MERO' as a prefix and that there was also no averment in Astrazeneca (supra) with regard to trans- border reputation. Whether the plaintiff was the first to adopt and use the prefix ‗MERO' in the Astrazeneca's case and ‗TEMO' in the present case is not of much consequence when infringement of a registered trademark is being considered. The case is not one of passing off where prior user would be a relevant consideration. The case is also not one where the defendant has raised a defence of prior user under Section 34 of the said Act where, again, the question of who used the mark first would be relevant. The present case is one of infringement under Section 29 of the said Act and the only question that requires consideration, as noted above, is whether the defendant's trademark is deceptively similar to the plaintiffs' registered trademarks. The distinction that the defendant seeks to draw between the Astrazeneca case and the present case is a mere illusion. There is no such distinction.

19. The decision in Heinz Italia (supra) is a case which deals with passing off and stands on a different footing. In Bhagwan Dass Gupta (supra), a learned Single Judge of this Court noted that the basic test to find out whether a trademark is a publici juris is that if the mark has come to be so public because of its universal use that it does not confuse or deceive by the use of it the purchasers of the goods of the original trader. The object to IA 2226/2007 in CS(OS)361 /2007 Page No.12 of 17 protect a trademark is merely to prevent the trader from being deceived or confused by the other persons goods as his goods. Although this decision was cited on behalf of the plaintiff, there is nothing in it which enables us to detract from the clear position as indicated in Astrazeneca's case. There is no doubt that Temozolomide is a generic word and is publici juris and nobody can claim exclusivity in respect of the same. Consequently, the clipped expression ‗TEMO' derived from clipping the word ‗TEMO' would also be publici juris over which no person can claim exclusive proprietorship.