Burroughs Wellcome (I) Ltd. vs American Home Products And Anr. on 3 October, 2001
In Astra-TDL Limited v. TTK Pharma Limited (supra) in the matter of Doctor's prescription this Court observed as under :
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Astra-Idl Limited vs Ttk Pharma Limited on 13 June, 1991
Kirloskar Diesel Recon Pvt. Ltd. And ... vs Kirloskar Proprietary Ltd. And Others on 10 October, 1995
10. The 2nd appellant had given notice under Section 299 of the Companies Act, 1956 in the year 1991. In the month of June/July 1992, the respondents had served notice upon the appellants objecting to use of Trade Mark 'Kirloskar' as part of corprate names of 1st appellant in each of the appeals. It is correct that a period of about 1 1/2 years elapsed between the 2nd appellant serving the notice under Section 299 and the respondents instituting the said suits. The question, however, arises for consideration is whether this period of about 1 1/2 years can be said to amount to consent, waiver, or acquiescence on the part of the respondents so as to disentitle the respondents to the equitable relief of injunction. The respondents had served notice upon the appellants on acquiring the knowledge that the appellants intend to use the word 'Kirloskar' as part of the coroprate names of the 1st appellant. As a matter of fact, there is no delay on the part of the respondents in approaching the trial court for the reliefs claimed. Even assuming that there has been some delay on the part of the respondents in approaching the trial Court as contended by the appellants, as held by this Court in the case of Ashtra -- IDL Ltd. v. TTK Pharma Ltd. (supra) the question of delay has to be balanced against the likelihood of respondents' ultimately succeeding in the action and where the strength of respondents' prima facie case is very strong, the respondents' delay in filing the action would not disentitle the respondents to the reliefs and it would be right to grant rather than to withhold interlocutory injuncion prayed for. In my view, the respondents have made out a very strong prima facie case for grant of interlocutory relief and in the circumstances, I hold that delay, if any, on the part of the respondents in filing the suits docs not disentitle the respondents to interlocutory relief nor it amounts to consent, waiver or acquiescence on the part of the respondents nor even estoppel so as to disentitle the relief of grant of interlocutory relief to the respondents.
Allergan Inc vs Milment Oftho Industries And Ors. on 6 November, 1997
On the other hand in Astra-IDL Ltd. v. TTK Pharma Ltd., (sic) and Hindusthan Pencils Pvt. Ltd. v. India Stationery Products, , the Courts were of the opinion, which I respectfully adopt, that where the interest of the general public is affected, delay is of no consequence. Moreover, delay could defeat the appellant's right if the respondents having built up their sales, were suddenly faced with the prospect of an injunction.
Kirloskar Diesel Recon Pvt. Ltd. And ... vs Kirloskar Proprietary Ltd. And Others on 10 October, 1995
10. The 2nd appellant had given notice under Section 299 of the Companies Act, 1956 in the year 1991. In the month of June/July 1992, the respondents had served notice upon the appellants objecting to use of Trade Mark 'Kirloskar' as part of the corporate names of 1st appellant in each of the appeals. It is correct that a period of about 1-1/2 years elapsed between the 2nd appellant serving the notice under Section 299 and the respondents instituting the said suits. The question, however, arises for consideration is whether this period of about 1 1/2 years can be said to amount to consent, waiver, or acquiescence on the part of the respondents so as to disentitle the respondents to the equitable relief of injunction. The respondents had served notice upon the appellants on acquiring the knowledge that the appellants intend to use the word 'Kirloskar' as part of the corporate names of the 1st appellant. As a matter of fact, there is no delay on the part of the respondents in approaching the trial court for the reliefs claimed. Even assuming that there has been some delay on the part of the respondents in approaching the trial court as contended by the appellants, as held by this court in the case of Ashtra - IDL Ltd., v. TTK Pharma Ltd., (supra) the question of delay has to be balance against the likelihood of respondents' ultimately succeeding in the action and where the strength, the respondents' prima facie case is very strong, the respondents' delay in filling the action would not disentitle the respondents to the relief and it would be right to grant rather than to withhold interlocutory injunction prayed for. In my view, the respondent have made out a very strong prima facie case for grant of interlocutory relief and in the circumstances, I hold that delay, if any, on the part of the respondents in filling the suits does not disentitled respondents to interlocutory relief nor it amounts to consent, waiver or acquiescence on the part of the respondents nor even estoppel so as to disentitle the relief of grant of interlocutory relief to the respondents.
Biofarma And Anr. vs Sanjay Medical Store And Ors. on 31 March, 1997
(20) In respect of the same, the Counsel appearing for the plaintiff relied upon a decision of Bombay High Court in Astra IDL Limited v. Ttk Phartila Limited Supra and a decision of this Court in Ciba Geigy Ltd. v. Cross lands Research Laboratories Ltd. reported in 1996 Ptc (16) Delhi Page I, wherein it was held that in the present circumstances and particularly in Indian context, the doctor's prescription factor, as last it is important since the reality of the situation could not be ignored and that in India schedule drugs which are to be sold under doctor's prescription are even sold without production of doctor's prescription and reduces the weightage that could be given to this aspect of the matter while considering the .-- question of deceptive similarity.
M/S. Lupin Laboratories vs M/S. Jain Products on 24 February, 1998
7. I have heard both the sides at length. I have gone through the pleadings and the affidavits as also I have given my anxious consideration to the judgments cited at the bar. Considering the word that is used by the defendants as found at Exhibit 'F' to the plaint, there is little doubt about similarity of the registered trade mark of the plaintiff and the word used by the defendants. The similarity is not only in the mark, but also in the structure and phonetics. One of the established tests is whether the customer with average intelligence could be confused between the two words indicating a same type of product. Let me assume for a moment, as observed by this Court in Astra IDL Ltd. v. TTK Pharma Limited, that even the schedule drugs are available across the counter, then the customer is entitled to ascertain whether the medicine demanded by him and handed over to him by the salesman is one of the same. The Phonetics of both the drugs being deceptively similar while pronouncing the words 'Pyralfin' and 'Pykalfin', it cannot be a matter of much debate that phonetical resemble of these two words can cause confusion in the mind of the customer of average intelligence. The only difference that can be found in verbal pronouncement is of the words 'Ra' & 'Ka', that is however not the relevant words, which will leave lasting effect on the mind of the customer, if the words are pronounced normally and in ordinary course of conversation. I am of the opinion that the mark used by the defendants is phonetically so similar to the registered mark of the plaintiffs that the difference in spelling the same is inconsequential and such similarity is bound to cause confusion in the mind of the customers of average intelligence.
Apple Laboratories Limited vs Boots Company Plc And Anr. on 9 July, 2004
In the case of "Astra-IDL Limited v. TTK Pharma Limited, AIR 1992 Bom 35, the learned single Judge of that High Court held that the trade mark "Betalong" was deceptively similar to the mark "Betaloc", The learned Judge has held as follows:
Cadila Healthcare Ltd. vs Swiss Pharma Pvt. Ltd. on 17 August, 2001
15.32. BETALOC and BETALONG were the two brand names in a dispute in a case between Astra-IDL Ltd. v. T T K Pharma Ltd. (p.620, Cases & Materials on Trade Marks). It was found that when the two names are visually and phonetically similar, when looked as a whole, there is a reasonable likelihood of confusion and hence injunction ought to be issued. It has also been observed that the two words are so similar that, there is reasonable confusion between the two. That, there is no question of microscopic inspection but general or casual view from the customer's point of view be taken. That actual deception is not necessary. Following observations may be noted:
Cadila Healthcare Ltd. vs Swiss Pharma Pvt. Ltd. And Anr. on 17 August, 2001
15.32. BETALOC and BETALONG were the two brand names in a dispute in a case between Astra-IDL Ltd. v. T.T.K. Pharma Ltd. (p.620, Cases & Materials on Trade Marks). It was found that when the two names are visually and phonetically similar, when looked as a whole, there is a reasonable likelihood of confusion and hence injunction ought to be issued. It has also been observed that the two words are so similar, that there is reasonable confusion between the two. That, there is no question of microscopic inspection but general or casual view from the customer's point of view be taken. That actual deception is not necessary. Following observations may be noted :
Ushodaya Enterprises Limited vs T.V. Venugopal And Another on 15 June, 2001
42. The third issue formulated by the learned single Judge in the impugned judgment is "Whether the plaintiff has established passing off goods by the defendant as if they are the goods of the plaintiff." The learned single judge while deciding this issue considered several submissions made on behalf of the defendant that the defendant is an honest bona fide concurrent user, delay and laches on the part of the plaintiff to take action in time, the defence of the defendant that he is dealing in unrelated goods, absence of similarities, visual, phonetic and other circumstances, has referred to several decisions viz., Shanmugavel v. Associated Publishers (Madras) Limited, (1997 IPLR 82), Amritdhara Pharmacy v. Safy deo Gupta, ; Park Products Limited v. Bakemans Industries Limited, (IPLR 1999 Jan 81); Sony Corporation v. Elite Optical Company, (1987 IPLR 98); Associated electronic and Electrical Industries v. M/s. Sharp Tools Limited, ; R.G. Anand v. Delia Films, ; Kenrick and Company v. Lawrence and Company, (1891 Q8D 99); M/s. Cadila Laboratories (Private) Limited v. M/s, Kamath Atul and Company, ; Teju Singh v. Shanta Devi, ; M/s. Hindustan Radiators Company v. M/s. Hindustan Radiators Limited, ; Vishnudas Trading v. The Vazier Sultan Tobacco Company Limited, (1997 IPLR 1); Corn Products Refining Company v. Shangrila Food Products Limited, ; Syed Nizamuddin v. Golden Tobacco Company Private Limited, IPLR 1978 AP 135); Ellora Industries, Delhi v. Banarasi Doss Goela, ; Simatul Chemical Industries Private Limited v, Cibatul Limited, ; Astra-Idl Limited v. TTK Pharma Limited, ; Daimlerbenz Akliegesellschaft v, Hybo Hindustan, ; Aktiebolaget Volvo of Sweden v. Volvosteels Limited of Gujarat (India), (1998 (Suppl.)