Case: Dey's Medical Stores (Mfg.) Ltd., Calcutta Vs Medika Laboratories, Dakor, Gujarat. Trademark Tribunal
| Counsel | For Appellant: Mr. R.R. Shah, Advocate |
| Judges | M. C. Gupta, ARTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 11(a), 11(e), 12(1), 12(3), 18(4), 33 |
| Judgement Date | November 18, 1992 |
| Court | Trademark Tribunal |
Judgment:
M. C. Gupta, ARTM
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A word mark CENALGIN is sought for registration in class 5 under application No. 396087 dt. 7th October, 1982 on the basis of claim of use since 19th March, 1974 by the above given applicants. Eventually the impugned mark under the application was advertised before acceptance under section 20(1) proviso vides Trade Marks Journal No. 949 dt. 16th December, 1988 at page 1050.
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On 16th March, 1989 the above given opponents lodged a notice of opposition on from TM-5 objecting to the registration of the aforesaid impugned mark of the applicants on the following grounds: -
(I) That the opponents are the registered proprietors of a trade mark consisting of the word DENALGIN (word per se) under application No. 306213 dt. 11th June, 1975 in class 5 for the goods Pharmaceutical preparations.
(ii) That the impugned mark of the applicants being deceptively similar to that of the opponents registered mark and the goods are also same and therefore prohibited for registration under section 12(1) of the Act.
(iii) That the channels of trade of the goods under the rival marks being same or similar and hence the use of the impugned mark is likely to cause deception and confusion in the course of trade in terms of section 11(a) of the Act and hence prohibited for registration even under section 11(a) of the Act.
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The opponents took objection under sections 9, 11(a), 11(e), 12(1) and 18(1) of the Act and also prayed for the exercise of discretion, vested in this Tribunal under section 18(4) of the Act, adverse to the applicants.
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In their counter statement filed on 18th August, 1989 the applicants denied the various averments of the opponents and stated that the mark is being used by them since last 15 years after getting the due permission from the Drug Authorities. Rest of the counter statement is a mere denial of the opponents averments.
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The evidence under Rule 53 of the opponents consists of an affidavit of Dilip Kumar Rakshit (Executive Officer) dt. 3rd November, 1990. The applicants evidence under Rule 54 is by way of an affidavit of N.C. Patel (partner) dt. 2nd August, 1991 alongwith exhibit-A (A-1 to A-56) and exhibit B (specimen of product). The reply evidence of the opponents under Rule 55 is by way of an affidavit of same Dilip Kumar Rakshit dt. 8th October, 1991. Eventually the matter was set down for hearing. On 4th May, 1992 the applicants came up with an Interlocutory Petition praying for taking on record...
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