Case: Acilla Pharmaceuticals Private Ltd., Calcutta Vs Cadila Chemicals Private Ltd., Ahmedabad. Trademark Tribunal
| Counsel | For Appellant: Mr. S.K. Raychaudhuri, Bar-at-Law, Advocate and For Respondents: Mr. R.R. Shah, Advocate |
| Judges | P. N. Havanur, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 18(1), 18(4) |
| Citation | 1986 (6) PTC 310 (Reg) |
| Judgement Date | August 20, 1986 |
| Court | Trademark Tribunal |
Judgment:
P. N. Havanur, DRTM.
On 29th November, 1979, Cadila Chemicals Private Ltd., Ghodasar, Maninagar. Ahmedabad-8 (hereinafter referred to "as the Applicants") made an application being Application No. 355892 in class 5 in Part A of the Register for registration of a trade mark comprising the word "TINIBA" in respect of a specification which after amendment read as "Pharmaceutical preparation containing tinidazole for the treatment of Protozoal infections". The mark is proposed to be used on the date of applications". Thereafter the mark was advertised in Trade Marks Journal No. 779 dated 16th November 1981 at page 524.
On 2nd March, 1982 Acilla Pharmaceuticals Private Limited, 188, Acharya Prafulla Chandra Road, Calcutta-700004 (hereinafter referred to "as the opponents") entered into opposition to the aforesaid application. The grounds of opposition are as follows:--
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That they are the proprietors of the mark comprising the mark "TINIVIT" and have been using the same since 11th March, 1971 in respect of medicinal preparations and they have made an application for its registration under No. 354512 on 15th October, 1979 and is pending.
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By virtue of such use, the use of the Applicants' mark causes confusion within the provisions of the Act.
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That the Applicant's mark is not distinctive under Section 9 of the Act.
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That the Applicants are not the proprietors of the mark under Section 18 of the Act.
The Applicants filed their counterstatement on 15th May, 1982 in which they averred that on the to tality the competing marks are not deceptively similar and that the Applicants' have been using their mark since 18th January, 1980 in respect of the product containing tinidazole drug which is a scheduled drug and which distinguishes from the product of the opponents in respect of which they claim to have used the mark since 1971 and hence the confusion is not likely. Rest of the counterstatement is one of denial.
The evidence in support of opposition is filed by way of affidavit dated 24th September, 1982 of Adhir Basu with certain exhibits affixed thereto. The affidavit of Adhir Basu dated 24th September, 1982 is supported by affidavit of B. P. Ghosh dated 31st May, 1983 and the affidavit of Nitya Ranjan Mahajan dated 1st July, 1983.
The applicants' evidence consists of the affidavit dated 15th October, 1985 of Miss. Renu Khanna with varied documents relating to the publicity and sale of the goods under the mark since 1980 including...
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