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39. Mr. Datta submits that a word fragment of the word which denotes the ingredient/pharmaceutical substance, may or may not be generic or publici juris for that pharmaceutical substance. He submits that even if the word fragment is publici juris, such word fragment may acquire distinctiveness for that pharmaceutical substance in the context of certain formulations containing that pharmaceutical substance for certain indications i.e. for the particular goods, by acquiring a secondary meaning from registrations and use, ceasing thereby to be generic/publici juris for that pharmaceutical substance in that limited context. He , therefore, argues that even if it is assumed for the sake of argument that ‗TEMODAL' and ‗TEMODAR' were originally generic/publici juris for TEMOZOLOMIDE, TEM/TEMO as incorporated in ‗TEMODAL' and ‗TEMODAR' have since acquired distinctiveness by acquiring secondary meaning through, registrations and use of ‗TEMODAL' and ‗TEMODAR' in over 100 countries, and thereby TEM/TEMO have ceased to be generic/ publici juris for TEMOZOLOMIDE in the limited context of TEMOZOLOMIDE based brain cancer drugs, and ‗TEM/‗TEMO' have acquired secondary meaning i.e. as abbreviations for ‗TEMODAL' and ‗TEMODAR'. In support of this submission, Mr. Datta cites example of ―Naukri.com‖, ‗Superflame' and ‗Ayur' and placed reliance on Glaxo Group Ltd. & Ors. v. Vipin Gupta & Ors. 2006 (33) PTC 145 (Del). He also places reliance upon Win-medicare Limited Vs. Somacare Laboratories 1997 (17) PTC 34 (Del), Orchid Chemicals and Pharmaceuticals Ltd. v. United Bio-tech P. Ltd. 2008 (38) PTC 691 (IPAB), Wyeth Holdings Corporation v. Burnet Pharmaceuticals P. Ltd. 2008 (36) PTC 478 (Bom), USV Ltd. v. Cadila Pharmaceuticals Ltd. 2008 (37) PTC 637 (IPAB), USV Ltd. v. IPCA Lab. Ltd. 2003 (26) PTC 21 (Mad), Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142, Anglo French Drug Co. (Eastern) Ltd. (Bombay) v. Belco Pharmaceuticals (Haryana) Sup. (2) PTC 452 (P&H) (DB), Water Bush Well Ltd. v. Anil Arora & Others PTC Supp. (1) 849 (Del), Beechem Group PLC v. SRK Pharmaceuticals 2004 (28) PTC 391 (IPAB), State of Maharashtra v. Jethmal Himatmal Jain & Another 1993 (13) PTC 304 (Bom), Biochem Pharmaceutical Industries v Astron Pharmaceuticals & Assistant Registrar Of Trade Marks, Trade Marks Registry 2003 (26) PTC 200 (DEL), Obsurg Biotech Ltd. v. East West Pharma 2008 (36) PTC 542 (IPAB), Lyka Labs Ltd. v. Tamilnadu Dadha Pharmaceuticals Ltd. & Anr. 2006 (33) PTC 512 (IPAB), Baroda Pharma Pvt. Ltd. v.

Zeneca Limited UK 2007 (34) PTC 151 (IPAB), Torrent Pharmaceuticals Limited v. The Wellcome Foundation Limited 2002 (24) PTC 580 (GUJ), Ranbaxy Laboratories Limited v. Vets Pharma (P) Limited & Ors. 2005 (31) PTC 116 (IPAB), Orchid Chemicals and Pharmaceuticals Ltd. Vs. United Biotech Pvt. Ltd. and The Registrar of Trade Marks 2008 (38) PTC 691, Wyeth Holdings Corporation and Anr. Vs. Burnet Pharmaceuticals (Pvt.) Ltd. 2008 (36) PTC 478 (Bom), USV Limited Vs. Cadila Pharmaceuticals Limited 2008 (37) PTC 637, Allergen Inc. vs. Sun Pharmaceuticals Industries Ltd. 2006 (32) PTC 495 (CAL), Lyka Labs Ltd. vs. Tamilnadu Dadha Pharmaceuticals Ltd. & Anr., 2006 (33) PTC 512 (IPAB). Remidex Pharma Private Ltd. v. Savita Pharmaceuticals P. Ltd. & Anr. 2006 (33) PTC 157, Pfizer Ireland Pharmaceuticals v. Intas Pharmaceuticals & Anr. 2004 (28) PTC 456, Allergen Inc. v. Chetana Pharmaceuticals 2007 (34) PTC 267 (CAL), Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142, Ciba Geigy Limited & Hindustan Ciba - Geigy Ltd. v. Croslands Research Laboratories Ltd. 1995 IPLR 375, Heinz Italia & Anr. v. Dabur India Ltd. 2007 VI A.D. (S.C.) 677, Balsara Hygiene Products Ltd. v. Arm Chaudhury & Anr. 2005 (30) PTC 272 (CAL), Syncom Formulations (India) Ltd. v. SAS Pharmaceuticals 2004 (28) PTC 632 (DEL).

77. In Obsurge Biotech Limited (supra) the common trademark was ‗SERADIC'. Since the two marks were identical in respect of medicinal preparations, the rectification application was allowed. This case has absolutely no relevance for our purpose.

78. Lyka Labs (supra) also is a decision of IPAB, Chennai dealing with the marks ‗TAMIACIN' and ‗TAMNIFO' on the one hand and the mark ‗TAMIN' on the other hand. The Appellate Board was examining whether ‗TAMIN' is deceptively similar to the registered marks ‗TAMIACIN' and ‗TAMNIFO'. The Board held that the mark ‗TAMIN' was phonetically, visually or structurally similar to the respondents mark ‗TAMIACIN'. Once again this decision did not proceed on the basis that a party could appropriate to itself the generic name or the abbreviation of the chemical active compound in a drug.

81. Ranbaxy Laboratories (supra) is also a case decided by the IPAB, Chennai. The trademark under examination was ‗LEVASOL', in respect whereof opposition was filed by the proprietor of the trademark ‗LEMASOL'. ‗LEVASOL' was a veterinary medicine, whereas ‗LEMASOL' was a pharmaceutical preparation for human use. The IPAB held that there was phonetic and visual identity, inasmuch as, for the letter ‗M' in the objector's drug, the letter ‗V' had been substituted by the applicant. The drug of both the parties fell within the same class 5 and the distribution channel of the goods being the same, there was likelihood of confusion. This case also does not throw any light on the generic chemically active compound on which either of the two drugs were based. It has absolutely no relevance to the cases in hand.