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1 - 9 of 9 (0.20 seconds)Novartis Ag vs Crest Pharma Pvt. Ltd. & Anr. on 24 July, 2009
23 Pharmaceutical products which are sold over the counter as
in the instant case both the products of the plaintiff and of the
defendant being „non-scheduled drugs‟, they can bought without a
prescription require a stricter, greater and higher standard of care.
I.A.No.12676/2013 in CS(OS) 2047/2014 Page 18 of 23
24 Admittedly the product of the plaintiff „METROKIND‟ is
an ointment which is used to cure bacterial infections. The
product of the defendant „MECOKIND PLUS‟ is in the form of
tablets/capsules or injection and is prescribed for a nerve disorder.
Such a contention was raised before a Bench of this Court in
Novartis AG Vs. Crest Pharma Pvt. Ltd. and Anr. 2009 (41) PTC
57 (Del).
M/S Kirorimal Kashiram Marketing & ... vs M/S. Shree Sita Chawal Udyog Mill Tolly ... on 30 August, 2010
18 In Kirorimal Kashiram Marketing and Agencies Pvt. Ltd.
Vs. Shree Sita Chawal Udyog Mill2010 (44) PTC 293 (Delhi), the
Court was dealing with the trade mark „Double Deer‟ of the
plaintiff and „Golden Deer‟ of the defendant. The product being
sold under these names was rice. The Division Bench of this
Court had noted that „Deer‟ was the prominent part of the trade
I.A.No.12676/2013 in CS(OS) 2047/2014 Page 15 of 23
mark of the plaintiff and the use of the word „Golden Deer‟ by the
defendant amounted to a deception and infringement of the
product of the plaintiff. The Court had gone on to examine that
although the word „Deer‟ had been arbitrarily adopted by the
plaintiff with respect to its product being rice and was nowhere
connected with the sale of rice but such an adoption in fact
amounts to a higher degree of protection and particularly so as the
trade mark of the plaintiff was a registered trade mark.
19 In this context, the submission of the learned counsel for
the plaintiff that registration of his trade mark „MANKIND‟ for
the sale of pharmaceutical products and the plaintiff admittedly
having several other registrations either with the prefix or suffix
to the work „KIND‟ and although the „KIND‟ admittedly has no
co-relation with the sale of the pharmaceutical products, the
plaintiff having established his first user of the word „KIND‟ in
the pharmaceutical market, the ratio of this judgment entitles him
to a higher protection for the word „KIND‟ is an argument which
has force. In the instant case the plaintiff is using the word
I.A.No.12676/2013 in CS(OS) 2047/2014 Page 16 of 23
„KIND‟ with the prefix „MAN‟ since the year 1986; his
registration for the mark „METROKIND‟ is of the year 2003. The
defendant cannot copy the essential/ predominant part of the trade
mark of the plaintiff which in this case is „KIND‟ as admittedly
the plaintiff has a registration for the trade mark „MANKIND‟
from the year 1986 and for „METROKIND‟ since the year 2003
and at the cost of repetition the plaintiff being the prior user in the
market of the word „KIND‟ for sale of pharmaceutical products
stands established by him.
Ozone Spa Pvt. Ltd. vs M/S. Ozone Club on 13 January, 2010
7 Rejoinder has been filed reiterating the averments made in
the application and denying the averments made in the reply.
8 At the outset, the objection taken by the learned counsel for
the defendant is that certified copies of the certificate of
registration of the plaintiff are not on record; admittedly, only
photocopies are on record. The submission of the learned counsel
for the plaintiff on this score is that there is no serious quarrel to
the admitted fact that the plaintiff in fact has registration over the
mark METROKIND and MANKIND; his submission is that he
I.A.No.12676/2013 in CS(OS) 2047/2014 Page 7 of 23
has applied for certified copies of the registration certificates but
they are yet to be obtained; they shall be filed in Court as and
when the same are obtained. Reliance has been placed upon a
judgment of Bench of this Court reported as 2010(42) PTC 469
(Del) Ozone Spa Pvt. Ltd. Vs. Ozone Club to support his argument
that where the original/certified copies of the trademark
certificate/registration certificate were not before the Court at the
time of dealing with the application under Order XXXIX Rule 1
and 2 CPC but there being no serious dispute to the fact that the
said marks were registered in favour of the plaintiff, the Court on
the undertaking of the plaintiff that he would produce the original
/certified copies of the documents, as and when the same are
obtained the Court had proceeded to decide the application under
Order XXXIX Rule 1 and 2 CPC noting the admitted position that
the plaintiff did have the mark registered in his favour. In view of
this legal position, learned counsel for the defendant at this stage
does not really press this objection.
Cadila Healthcare Limited vs Cadila Pharmaceuticals Limited on 26 March, 2001
This was for a sale of pharmaceutical products. The Bench of the
Bombay High Court while granting injunction in favour of the
plaintiff had noted that since the plaintiff has adopted a series of
marks „LOX‟, the consumers of the plaintiff‟s products would be
acquainted with the mark; „XYLOX‟ would be assumed to be a
part of the family of the plaintiff‟s series of marks. Relying upon
the pronouncement of the Apex Court in Cadila Healthcare Ltd.
Vs. Cadila Pharmaceuticals Ltd. (2001) 5 SCC 73 and applying
the test of a common man of average intelligence and imperfect
I.A.No.12676/2013 in CS(OS) 2047/2014 Page 14 of 23
recollection and noting that the phonetic similarity test is crucial
and probably the principle test, the said Court had noted that the
defendant‟s „XYLOX‟ family of marks was confusing and
deceptively similar to the plaintiff‟s mark „LOX‟ family of marks.
17 The extract of the Apex Court in Cadila Healthcare Ltd. is
also relevant in this context and reads herein as under:-
Kaviraj Pandit Durga Dutt Sharma vs Navaratna Pharmaceutical ... on 20 October, 1964
20 The Supreme Court in Kaviraj Pandit Durga Dutt Sharma
Vs. Navaratna Pharmaceutical Laboratories AIR 1965 SC 980
had quoted with approval the following text:-
Ihhr Hospitality Pvt Ltd vs Bestech India Pvt Ltd on 31 May, 2011
Vs. Intas
Pharmaceuticals Ltd. and Anr. 2010(42) PTC 772 (Del) Schering
I.A.No.12676/2013 in CS(OS) 2047/2014 Page 6 of 23
Corporation & Ors. Vs. Alkem Laboratories Ltd. as also another
judgment of the Division Bench of this Court reported as in
FAO(OS) 352/2011 IHHR Hospitality Pvt. Ltd. Vs. Bestech India
Pvt. Ltd. decided on 09.5.2012. Submission being that
admittedly, the word KIND has not been registered with the
plaintiff; being a generic word and being publici juris; in no
manner can it be said that the product of the plaintiff is
deceptively similar to the product of the defendant. On all counts
the application is liable to be dismissed.
Aviat Chemicals Pvt. Ltd. And Anr. vs Intas Pharmaceuticals Ltd. on 30 July, 2001
6 Learned counsel for the defendant to support his
submission has placed reliance upon 2001 PTC 601 (Del) Aviat
Chemicals Pvt. Ltd. and Anr. Vs. Intas Pharmaceuticals Ltd.,
2007 (34) PTC 18(Del) Kalindi Medicure Pvt.Ltd.
Neon Laboratories Ltd vs Themis Medicare Ltd on 16 September, 2014
4 Learned senior counsel for the plaintiff in support of his
submissions has placed reliance upon MANU/MH/1633/2014
Neon Laboratories Ltd. Vs. Themis Medicate Ltd. MIPR 2010(2)
25 Kirorimal Kashiram Marketing and Agencies Pvt. Ltd. Vs.
Shree Sita Chawal Udyog Mill, MIPR 2010 (1) 44 Novartis AG
Vs. Crest Pharma Pvt. Ltd. And Anr and (2001) 5 SCC 73 Cadila
Health Care Ld. Vs. Cadila Pharmaceuticals Ltd; submission
being that in the sale pharmaceutical products stricter standards
have to be applied to prevent likelihood of confusion as
consumption of such a product could even result in a physical
harm to the consuming public. Accordingly, an injunction has
been prayed seeking a restraint upon the defendant from using the
aforenoted mark MECOKIND PLUS.
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