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Case: Dey's Medical Stores Limited, Calcutta Vs Optrex India Limited, Srinagar (J&K). Trademark Tribunal

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Party Name:Dey's Medical Stores Limited, Calcutta Vs Optrex India Limited, Srinagar (J&K)
Counsel:For Appellant: Mr. S.K. Ray Chaudhari, Adv. and For Respondents: Mr. S.K. Dutt, Advocate instructed by M/s. L.S. Davar and Co.
Judges:M. R. Bhalerao, DRTM
Issue:Trade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1), 18(1), 18(4)
Judgement Date:March 10, 1987
Court:Trademark Tribunal

Judgment:

M. R. Bhalerao, DRTM

On 20th January 1981,Optrex India Limited, Optrex House, Zainkot, Post Bag No. 1, Srinagar-190012, Kashmir (hereinafter referred to as "the Applicants") made an Application, being No. 371182 to register the trade mark 'DELOPAN' (word perse) in respect of the specification of goods which on subsequent amendment reads as, "pharmaceutical and medicinal preparation for use in respiratory, gastro-intestinal and general debility conditions being a Shedule 'H' drug to be sold on written prescription of Medical Practitioners". In due course, the Application was advertised before acceptance in the Trade Marks Journal No. 840 dated 1st June, 1984 at page 167.

On 30th August, 1984, Dey's Medical Stores Limited, 6/D, Nelly Sengupta Sarani, Calcutta-700087 (formerly of 6/D, Lindsay Street, Calcutta-700016 (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 grounds, which are briefly as follows: -

That the Opponents are the proprietors of the trade mark DELONE.

That the Opponents' said trade mark has been in use for many years and much reputation and valuable goodwill have accrued to the said trade mark.

That the Opponents' said trade mark is registered under No. 205508 dated 27th October 1961, in Class 5, in respect of 'pharmaceutical preparations'.

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

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

That the use of the trade mark applied for would be likely to deceive or cause confusion.

That the trade mark applied for is 'proposed to be used'.

That the registration of the trade mark applied for will be contrary to Sections 9, 11(a), 11(e), 12(1) and 18(1) of the Act.

That the Registrar's discretion should be exercised against the Applicants.

In their counterstatement, the Applicants state that, before advertisement of their Application, their argument that their would be no likelihood of confusion or deception due to the use of their trade mark, as the Opponents had used their trade mark DELONE only for the medicines of tubercolosis, which are required to be sold on written prescription of qualified physicians, was accepted by the Registrar. The Applicants have denied the allegations and statements made by the Opponents in their Notice of Opposition.

The evidence in support of opposition consists of one affidavit by Dilip Kumar Rakshit.

The Applicants have not filed evidence in support of application.

The matter comes before me for hearing on 26th February, 1987. Shri S. K. Ray Chaudhuri, Bar-at-Law, Advocate appears for the opponents. Shri S.K. Dutt, Advocate instructed by S/Shri L. S. Davar & Co., Patent and Trade Marks Attorneys appears for the Applicants.

At the time of the hearing, Shri Ray Choudhuri confines his arguments to the Opponents' objection based on sections 11(a), 12(1), 18(1) and 18(4).

According to Section 11(a), a mark the use of which would be likely to deceive or cause confusion -- shall not be registered as a trade mark. Section 12(1) prohibits the registration of a trade mark which is likely to deceive or cause confusion by reason of similarity to the trade mark already registered in the...

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