Case: Ambalal Sarabhai Enterprises Pvt. Ltd. Vs Meiji Seika Kaisha Ltd.. Trademark Tribunal

CounselFor Appellant: Mr. P. Narayanan, Advocate and For Respondents: Mr. Amarjyothi, Advocate
JudgesM. R. Bhalerao, DRTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1), 18(4)
Citation1984 (4) PTC 257 (Reg)
Judgement DateDecember 20, 1983
CourtTrademark Tribunal

Judgment:

M. R. Bhalerao, DRTM

On 4th September, 1978 Meiji Seika Kalshe Std. (a Japanese Company organised and existing under the lawe of Japan), 4-16, Kyobasi 2 Chome, Chuo-Ku, Tokyo, Japan (hereinafter, referred to as "the Applicants") made an application, being Number 340493, in Class 5, to register a trade mark 'FOSHIOIN' in respect of the specification of goods which on subsequent amendment reeds as "antibiotic preparations". The mark is 'Proposed to be used'. In due course, the Application was advertised in the Trade Marks journal No. 740 dated 1st April, 1980 at page 12.

On 23rd July, 1980 Ambalai Sarabhai Enterprises Private Limited, 1956 wadi wadi, Baroda-390007 (hereinafter referred to as "the Opponents") lodged a Notice of Opposition, under Section 21(1), to the registration of the aforesaid trade mark on the following grounds:

  1. That the Opponents are the Proprietors of the trade mark 'PHOSFONIS' registered number 144033 as of 20.6.1950 in respect of Pharmaceutional preparations and Chemicals for medicinal and pharmaceutical purposes".

  2. That by reason of its continuos use by the Opponents and their preiecesors, the trade mark 'PHOSFOMIS' has acquired considerable reputation and goodwill and it has become exclusively associated with the Opponent Company.

  3. That the mark applied for is deceptively similar to the Opponents' trade mark.

  4. That the goods for which registration is sought and the goods covered by the Opponents' registration are either the same or of the same description.

  5. That in view of the prier use and registration of the Opponents, trade mark, the use of the mark applied for would be likely to deceive or cause confusion.

  6. That the registration will be contrary to the provisions of Sections 12(1) and 11.

  7. That the use of the applicants mark would results in infringement and hence would be disentitled to protection in a Court of law.

  8. That the Applicants are not the proprietors of the mark within the meaning of Section 18.

In their Counterstatement the Applicants have stated that their goods would be said on Doctors' prescriptions and hence there would be no likelihood of confusion or deception. The Applicants have denied all the statements made in the Notice of Opposition.

The evidence in support of opposition consisted of one affidavit dated 6th January 1982 by Vithalbhai C. Shah. The evidence in support of application consists of one affidavit by Takeshi Nakagana. The evidence is reply is in the form of an affidavit dated 23rd December, 1982 by Vithalbhai C. Shah. The matter came up before me for hearing on 7th December, 1983. Shri P. Narayanan, Advocate appeared for the Opponents. Miss Amarjyothi, Advocate instructed by Remfry & Son, Patent and Trade Mark Attorneys appeared for the Applicants.

At the hearing, the learned counsel for Opponents confined his arguments to the Opponents, objections based on Sections 12(1), 11(a) and 18(4) of the Act.

Section 12(1) prohibits the registration of a trade mark which is likely to deceive or cause...

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