Document Fragment View
Fragment Information
Showing contexts for: unregistered trade mark in Emcure Pharmaceuticals Ltd vs Corona Remedies Pvt. Ltd on 10 September, 2014Matching Fragments
3. I have heard Dr. Saraf, learned Counsel for the Plaintiff, and Dr. Tulzapurkar, learned Senior Counsel for the Defendant, at some 2 of 20 NM-1644-13-S-734-13-F.DOC length. With their assistance, I have gone through the material on record. I have carefully considered their submissions, including Dr. Tulzapurkar's submission that the provisions of Section 33 of the Trade Marks Act, 1999 ("the Act") are not entirely restricted to a rival later registered trade mark; specifically, that Section 33(1)(b) applies also to a later unregistered trade mark. For the reasons that follow, I have found, prima facie, that the Defendant's marks infringe the Plaintiff's, and the Defendant's use of the rival marks to constitute passing off. I have not found sufficient merit in the defence to deny the reliefs sought. I have made the Notice of Motion absolute.
19. Dr. Tulzapurkar counters the submission that Section 33 of the Act is restricted to registered trade marks by saying that this cannot possibly be, for it would render Section 33(1)(b) otiose. Once a rival trade mark is registered, Section 28(3) comes into play and one registered proprietor cannot move against another registered proprietor claiming exclusivity. If that is so, then there is no situation in which Section 33(1)(b) could possibly apply. Hence, this section must be held to apply to unregistered trade marks. In Neel Electro Techniques & Ors. v Neelkanth Power Solution & Anr.,16 Mr. Justice S.C. Gupte rejected Dr. Tulzapurkar's submission on Section 33. The submission related, I must note, to the period of five years, not whether it applied to the proprietor of an unregistered mark as well. Mr. Justice Gupte said that Section 33 deals with the case of two registered trade marks, registered at different points of time. The issue before him was not of two registered trade marks. He also held that the period of five years was a time after which 65 (1997) DLT 369 Notice of Motion No.54 of 2012 in Suit No. 55 of 2012, decided on 24th June 2014.