Case: Cipla Limited, Bombay Vs Unicure Pharmaceuticals, Baroda. Trademark Tribunal

Party Name:Cipla Limited, Bombay Vs Unicure Pharmaceuticals, Baroda
Counsel:For Appellant: Mr. L.B. Desai and Mr. P. Venketasurbramani, Company Secretary of M/s. Cipla Limited and For Respondents: Mr. R.R. Shah, Advocate
Judges:T. R. Subramanian, DRTM
Issue:Trade and Merchandise Marks Act, 1958 - Section 107
Judgement Date:August 11, 1988
Court:Trademark Tribunal

Judgment:

T. R. Subramanian, DRTM

  1. This is an Interlocutory Petition dated 11-4-88 filed by M/s. Cipla Limited, 289, Bellasis Road, Bombay Central, Bombay -- 400 008 (hereinafter referred to as the Registered Proprietors) on 12-4-1988 in the above rectification proceedings filed by Bharatbhai Ranchhodle Shah and Ambalal Vanerssidas Patel trading as M/s. Unicure Pharmaceuticals of 3, Anand Building, Pulbari Naka, Baroada-390 001 (hereinafter referred to as the Applicants). The above rectification proceeding was filed by the applicants on 12-11-1986 seeking removal from the Register of Trade Marks of the impugned registered trade mark No. 362972 of the registered proprietors. The impugned mark consists of the word PIROX registered in respect of Pharmaceutical and Medicinal Preparations being an anti-inflammatory drug in class 5. In the application for rectification on form TM-26 and in the Statement of case filed therewith, the applicants have alleged mainly inter alia:

    That the impugned mark offends against the provisions of Sections 9, 11, 18 and 23(2) of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act.

    That the impugned trade mark offends against the provisions of Section 46 (1)(a) and so the mark ought to be removed from the register.

    That the applicants have further stated in para 14 of TM-26 as follows:-

    "No action concerning the registered trade mark in question except Civil Suit No. 4 of 1986 in the District Court at Baroda is pending in any court in India. The applicants for rectification have appeared in the said suit but have not yet filed their written statement of defence in the said suit.

  2. A notice with a copy of the above TM-26 was served on the registered proprietors. It was pointed out to the registered proprietors hat a counter-statement of the grounds on which the registered proprietors rely for the registration should be filed on TM-6 within two months from the date of receipt of the notice.

  3. The registered proprietors filed requests on forms TM-56 for extension of time upto 24-8-88 to file their counter-statement which was granted by this office. In the mean time, the registered proprietors with their letter dated 11-4-88 filed an Interlocutory Petition dated 11-4-88 which is the present petition under consideration. In this Interlocutory Petition, the registered proprietors have prayed that the rectification proceedings filed by the applicants is without jurisdiction on the grounds inter alia:

    That they are public limited company registered under the Indian Companies Act and having its registered office at 289, Bellasis Road, Bombay Central, Bombay-400 008. They are the registered proprietors in respect of Registered Trade Mark No. 362972. They had filed an infringement suit against the applicants for rectification namely Unicure Pharmaceuticals of Baroda in the Court of District Judge, Baroda on 23rd Sept. 1986. The learned judge passed as Interim injunction against the applicants restraining them from using the trade mark PIROX, the subject matter of the above mentioned rectification proceedings. Under the directive of the High Court of Judicature of Gujarat the matter was expeditiously heard by the learned District Judge in the month of December, 1986 and January 1987 who passed a detailed order dated 21-1-1987 restraining the applicants from infringing the trade mark PIROX of the registered proprietors. The applicants for rectification filed an appeal to the Gujarat High Court at Ahmedabad which however was summarily rejected.

    That the present rectification proceedings were filed on 10-11-86 admittedly much later than the infringement suit No.4 filed in the court of District Judge, Baroda by the registered proprietors. In fact the applicants themselves have admitted in paragraph 14 of the application for rectification that such Civil Suit No. 4 of 1986 was pending in the District Court at Baroda...

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