Indian Kanoon - Search engine for Indian Law

13."It was next submitted by Mr. Tulzapurkar, relying on the decision of the Supreme Court in Corn Products Refining Co. v. Shangrila Food Products Ltd., that it was defendants submission that their mark contained a common element because of their drug containing Aspirin and that there were series of marks in extensive use in the market and, therefore, the onus of proving such extensive user was on defendants who wanted to rely on such marks. This onus, according to Mr. Tulzapurkar, is not discharged. Mr. Patel, in reply, submitted that the said decision which requires evidence of use of the marks having common prefix was rendered on and would be applicable to a matter decided on final hearing after evidence is led. Thus, according to him at the interim stage it would be prima facie sufficient to show that marks with suffix "Spring" are in use with reference to Indian Pharmaceutical Guide and that in the instant case the defendants were not merely referring to the marks on the Trade Mark Register but to marks of products which are in use as indicted in the said Guide. I see considerable force in Mr. Patels submission. Prima facie, I am satisfied that several products containing Aspirin and having their trade marks with a suffix of "Sprin" are in use. Moreover, the fact of such products marketed under such marks is not disputed. In these circumstances, I reject Mr. Tulzapurkars submission."