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Documents citing Indo-Pharma Pharmaceutical Works ... vs Pharmaceutical Company Of India on 22 August, 1977

Maharashtra State Co-Operative Cotton ... vs Ralli Bros. And Coney Ltd. And Ors. on 11 July, 1991

In my judgment, it is not necessary to discuss this judgment in detail or consider in detail the principle of law pertaining to "issue estoppel" as laid down in Halsbury's Laws of England, Fourth Edition. Vol. XVI, para 1530, for the simple reason that issue of limitation was not determined by Hon'ble Supreme Court while deciding the appeal arising from the application for amendment dated 7th April, 1987. Accordingly, the question of res judicata or issue estoppel does not and cannot arise at all.
Bombay High Court Cites 39 - Cited by 5 - Full Document

Atul Kumar Manilal Shah, Proprietor, ... vs Nasik Hing Supplying Co., Nasik And Anr. on 11 April, 2002

21. The next decision relied upon by Mr. Shah, is Indo-Pharma Pharmaceutical Works Pvt. Ltd. v. Pharmaceutical Company of India, (1977) Vol. LXXX The Bombay Law Reporter 73. That was a case of infringement action instituted by the plaintiff company, which was the proprietor of trade mark, which consists of the word "Butacortindon" in respect of medical and pharmaceutical preparations and the same was registered on 16-3-1963. The firm which was also a manufacturer of pharmaceutical preparations had obtained registration of the trade mark consisting of the word "Butacort", registered in the same class in respect of the pharmaceutical preparation for sale to the hospitals of the Government of Gujarat. In the suit the plaintiffs complained that the defendant firm was trying to sell its pharmaceutical preparation under the trade mark "Butacort" to persons other than the hospitals of the government of Gujarat and that such action on the part of the defendant firm amounted to an infringement of the plaintiffs registered trade mark. The plaintiffs, therefore, sought injunction to limit the sale of defendant firm other than to the hospitals of the government of Gujarat. In reply, the defendant firm contended that the Dy. Registrar of Trade Marks had held in the opposition proceedings that the defendants were prior users and therefore, they were entitled to registration under the provisions of Section 33 of the Act. It was also contended on behalf of the defendant firm that such prior users and continuous users of the trade mark by them entitled them to the protection under Section 33 of the Act. The learned Single Judge (S. K. Desai, J), explained the provisions of Section 33 and held that the user which is protected by Section 33 against interference or restraint, is user and not such user which in fact existed on the date of the first registration of the trade mark whose owner or proprietor has moved the Court, complaining that another person is using an identical or a deceptively similar trade mark. The learned Judge further held that if continuous and prior use, as explained in the section, is proved, the proposition must fail and the relief of injunction must be refused by the Court. It was held that the section does not provide for the opposition to fail partially only and succeed partially. Similarly the section does not suggest that in the suit some limited relief may be granted despite proof of prior continuous user. In short, it was held by the learned Judge that Section 33 of the Act, confers absolute protection or immunity on a person who is able to prove or establish continuous user prior to the date of registration of the trade mark of the other person, who seeks to restrain him.
Bombay High Court Cites 23 - Cited by 1 - J A Patil - Full Document

Agromore (P) Ltd. And Anr. vs Chembond Chemicals Ltd. And Anr. on 21 March, 2001

Despite, this duty being imposed on the Plaintiff by the agreement entered into by the Plaintiff, the Plaintiff while the registration of Amchem Corporation of their trade mark was current till 1982 made an application in the year 1981 for registration of his own trade mark Rotodine, which according to the Plaintiff himself is deceptively similar to the trade mark Rodine. The learned counsel submits that the conduct of the Plaintiff of making an application for registration of his trade mark Rotodine was in breach of his contractual duty to Amchem Corporation. The learned Counsel further submits that even if it is assumed that for the purpose of this suit, despite his conduct, the Plaintiff has to be considered as a registered proprietor of the Trade mark Rotodine, in view of the fact that the Plaintiff is using the trade mark as a licensee of Henkel Corporation, which is a successor of Amchem Corporation, which was using the trade mark since prior to the date of the registration of the trade mark Rotodine in favour of the Plaintiff in terms of the provisions of Section 33 of the Trade Marks Act the Plaintiff is not entitled to injunction, which he is claiming. The learned Counsel, in support of this submission, relies on a judgment of this Court in the case of Indo-Pharmaceutical Works Pvt. Ltd. v. Pharmaceutical Company of India, 1977 (Vol. LXXX) B.L.R. 73.
Bombay High Court Cites 21 - Cited by 1 - D K Deshmukh - Full Document

Kores (India) Limited vs Whale Stationery Products Ltd. on 6 December, 2007

In IndoPharma Pharmaceutical Works Private Limited v. Pharmaceutical Company of India 80 Bombay Law Reporter 73, a learned Single Judge of this Court considered the requirement of a continuous user from a date prior to the registration of the other mark in Section 33 of the Trade and Merchandise Marks Act, 1958. This judgment is authority for the proposition that the requirement of a continuous prior user must be established on the basis of clear and cogent evidence. The evidence led by a party seeking to establish a continuous prior user will be required to be considered in the background of the nature of the product, the type of sales, the territory within which it is sold and the scale of manufacture of the party. In the present case, primafacie at this stage, there is no material to indicate a continuous prior user of the mark by the Defendant within the territory of India prior to the registration of the mark by the Plaintiff. That being the position, the action by the Plaintiff for infringement can validly be founded on the rights of the Plaintiff as a registered proprietor under Sections 28 and 29 of the Trade Marks Act, 1999. The Plaintiff has made out a primafacie case for the grant of an interlocutory injunction both on the basis of infringement and passing off. Considering the fact that the business of the Defendant within the territory of India has only recently commenced and having regard to the scale and character of the business, the balance of conveyance requires an order of interlocutory injunction to be passed in the interest of justice.
Bombay High Court Cites 14 - Cited by 5 - D Y Chandrachud - Full Document

M/S. Neon Laboratories Limited vs M/S. Medical Technologies Ltd on 31 March, 2012

Pharma Pharmaceutical Works Pvt. Ltd. v. Pharmaceutical Company of India 1977 BLR 73, a learned single Judge of this Court followed the judgment of the High Court of Mysore in K.R. Chinna Krishna Setty v. Amball & Co. AIR 1973, Mysore 74, which held that the SRP 43/60 ::: Downloaded on - 09/06/2013 18:23:03 ::: NMS4006.05 decision given in earlier proceedings between the same parties with regard to registration of a trademark operated as res judicata in a proceeding under section 105 for infringement. The Mysore High Court held that the decision in the matter of trademark application and the opposition thereto would govern the rights of the parties in the suit for infringement. In other words, the principle was applied although the earlier decision was not one in a suit and the same could not be brought within the four corners of the Code of Civil Procedure.
Bombay High Court Cites 32 - Cited by 0 - S J Vazifdar - Full Document

Lt Foods Ltd. vs Sunstar Overseas Ltd. & Anr on 30 March, 2012

In IndoPharma Pharmaceutical Works Private Limited v. Pharmaceutical Company of India, 80 Bombay Law Reporter 73, a learned Single Judge of this Court considered the requirement of a continuous user from a date prior to the registration of the other mark in Section 33 of the Trade and Merchandise Marks Act, 1958. This judgment is authority for the proposition that the requirement of a continuous prior user must be established on the basis of clear and cogent evidence. The evidence led by a party seeking to establish a continuous prior user will be required to be CS (OS) Nos.612/2009, 639/2009 & 653/2009 Page No.39 of 45 considered in the background of the nature of the product, the type of sales, the territory within which it is sold and the scale of manufacture of the party. In the present case, prima facie at this stage, there is no material to indicate a continuous prior user of the mark by the Defendant within the territory of India prior to the registration of the mark by the Plaintiff. That being the position, the action by the Plaintiff for infringement can validly be founded on the rights of the Plaintiff as a registered proprietor under Sections 28 and 29 of the Trade Marks Act, 1999. The Plaintiff has made out a prima facie case for the grant of an interlocutory injunction both on the basis of infringement and passing off. Considering the fact that the business of the Defendant within the territory of India has only recently commenced and having regard to the scale and character of the business, the balance of conveyance requires an order of interlocutory injunction to be passed in the interest of justice."
Delhi High Court Cites 22 - Cited by 2 - M Singh - Full Document

Hsbc Pi Holdings (Mauritius) Limited vs Avitel Post Studioz Limited on 22 January, 2014

Ltd. (supra) and judgment of Division Bench in case of Konkola Copper Mines (PLC) (supra), the submission of Dr.Tulzapurkar is that in this case in view of expression choice of the parties to make a seat of arbitration in Singapore, a seat of arbitration would govern the law of arbitration agreement and under the Singapore law, Aribtral Tribunal can decide the claims involving allegations of fraud if any. It is submission of Dr.Tulzapurkar that in view of the express agreement between the parties that except section 9, no part of part (I) would apply also clearly indicates that Part (I) is expressly excluded by the agreement between the parties except the extent of applicability of section 9. It is submitted that thus this proceedings under section 9 of the Arbitration and Conciliation Act, 1996 is thus maintainable in this court for the purpose of granting interim measures though for all other parties, the law of Singapore would apply to the arbitration proceedings. The submission of Dr.Tulzapurkar is that since the parties were governed by law of Singapore, even if there are any allegations of fraud in statement of claim before the Arbitral Tribunal or in this proceedings filed under section 9, under law of Singapore, there is no bar against the arbitrator from adjudicating upon the allegations of fraud. Per Contra, the submission of Mr.Rohatgi, learned senior counsel appearing for the respondents on this issue is that under clause 16.4 of the agreement, the said clause does not oust Indian law but merely oust part of Part I ::: Downloaded on - 27/01/2014 23:11:13 ::: kvm 77/95 ARBP1062.12 of Arbitration Act.
Bombay High Court Cites 68 - Cited by 9 - R D Dhanuka - Full Document
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