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Glaxo Group Ltd. And Anr. vs Neon Laboratories Ltd. on 3 June, 2003 cites

Johann A. Wulfing vs Chemical Industrial & Pharmaceutical ... on 6 December, 1983

27. The facts are in many respects similar to the facts in the present case. The prefix in both the cases viz., the letters 'TO' are the same. I am however satisfied basing my decision on the reasoning adopted by me earlier. As pointed out by Mr. Tulzapurkar, one of the differences between the case in American Home Products and the present case is that the word ROWLAC is a totally invented word whereas the word 'CELIN' is part of a generic term. Moreover it is a well-established principle, reiterated in American Home Products, that every case depends on its own facts and the value of authorities lies not so much in the actual decision as in the tests applied for determining what is likely to deceive or cause confusion. I do not read the decision as having laid down as a rule that in every case the mere existence of a prefix or even the mere existence of the letters 'TO' as a prefix to a registered mark would lead to infringement. The judgment on this aspect is therefore not binding as a precedent in all cases where a trade mark is prefixed with the letters 'TO'. On the other hand in Johann A. Wulfing v. I & P Laboratories Ltd. (supra) the Division Bench, accepting the passage from Kerley, laid down as a principle that the first syllable of a word of mark is generally the most important. The judgment was not brought to the notice of the learned Judge in American Home Products. Mr. Daruwalla was unable to effectively controvert the submission. It is by applying this principle among others that I have come to the conclusion that there is no phonetic similarity between the marks CELIN and TOCILLIN save as I have already discussed.
Bombay High Court Cites 4 - Cited by 30 - Full Document

Corn Products Refining Co. vs Shangrila Food Products Ltd. on 8 October, 1959

It was contended in that case on behalf of the defendants that the decision of the Supreme Court in Com Products v. Shangrila Food Products, can be of no assistance as that was in the proceeding at the final hearing of the suit. The Supreme Court held that the principle clearly requires that the marks comprising the common element should be in fairly extensive use. It was further held that the series of marks containing the common element or elements therefore only assist the applicant when these marks are in extensive use in the market. The onus of proving such user is on the applicant who wants to rely on those marks. After dealing with various judgments on the aspect I rejected the submission that at the prima facie stage it is enough to show mere user and that it is not necessary for the defendant to show the extent of user.
Supreme Court of India Cites 6 - Cited by 398 - Full Document

M/S Aristo Pharmaceuticals Ltd. vs M/S. Wockhardt Ltd. on 24 November, 1999

It is not inconceivable that if the defendant's product, TOCILLIN', is prescribed the person to whom it is prescribed may hear or understand it as two of the plaintiffs products sold under the mark 'CELIN'. Conversely if two of the plaintiffs products sold under the mark 'CELIN' are prescribed it is not inconceivable that the person hearing it may understand it to mean the defendant's product 'TOCILLIN'. The possibility of confusion cannot therefore be ruled out. The Supreme Court in Cadila's case, cited with approval the observation of the House of Lords in Aristoc Ltd. v. Rysta Ltd., (1945 (62) RPC 65 at p 72) that the court must be careful to make allowance for careless pronunciation and speech on the part not only of the person seeking to buy under the trade description, but also of the shop assistant ministering to that persons wants. I venture to add a circumstance justifying this need for caution at least in our country. Being available even without a prescription it is not always that the persons who are prescribed the medicine themselves purchase it. They often delegated that duty to another. This can only compound the confusion caused by careless pronunciation. The plaintiff must therefore succeed in its case for infringement.
Supreme Court of India Cites 0 - Cited by 17 - Full Document

E.R. Squibb & Sons Inc. vs Curewel India Limited on 11 February, 1986

In this view of the matter Mr. Tulzapurkar's reliance upon a judgment of the Delhi High Court in E.R. Squibb & Sons Inc. v. Curwel India Ltd., is of no assistance to him. The rival marks there were Curechlor and 'Reclor'. It was held that the former mark was not deceptively similar to the latter. However, the prefix 'Cur' is different from the prefix in the present case. It is not a numeral and therefore did not connote a quantum which the prefix 'TO' in this case does. The case is therefore distinguishable on facts.
Delhi High Court Cites 3 - Cited by 7 - Full Document

F. Hoffmann-La Roche & Co. Ltd vs Geoffrey Manners & Co. Pvt. Ltd on 8 September, 1969

32. Mr. Tulzapurkar also relied upon the judgment of the Supreme Court in Roche & Co. v. G. Manners and Co., . However that case is distinguishable on facts. The marks in question in the case were, on behalf of the appellant "PROTOVIT" and on behalf of the respondent "DROPOVIT". The appellant had applied for rectification of the register by removal therefrom the respondents mark on the ground that it so nearly resembled its mark as to be likely to deceive or cause confusion. The Supreme Court accepted the case stated in the affidavits of the defendant indicating that the letters "VIT" were a well-known abbreviation used in the pharmaceutical trade to denote vitamin preparations. The Supreme Court further observed that even an average customer would know that in respect of vitamin preparations the word "VIT" occurs in a large number of trade marks and because of this he would naturally be on his guard and take special care against making a mistake. The Supreme Court held that it was apparent that the terminal syllable "VIT" in the two marks is both descriptive and common to the trade and that if greater regard is paid to the uncommon element in these two words it is difficult to hold that one will be mistaken for or confused with the other. The argument based on the principle of series was thus accepted as on facts the plaintiff had established its case.
Supreme Court of India Cites 11 - Cited by 197 - V Ramaswami - Full Document

Cadila Healthcare Limited vs Cadila Pharmaceuticals Limited on 26 March, 2001

28. Mr. Tulzapurkar submitted that 'TOCILLIN' can only be sold on a doctor's description. This fact he submitted ought to weigh in the defendant's favour. I am unable to agree. A long line of decisions resting with the judgment of the Supreme Court in Cadila's case negates this contention. Considering the nature of the products in the present case and my above findings, the fact that the defendants products under the mark TOCILLIN' can be sold only on a doctor's prescription is virtually of no importance.
Supreme Court of India Cites 20 - Cited by 545 - Full Document
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