Case: Dr. Wilmar Schwabe, Karlsruhe-41, West Germany Vs Venus Laboratories Private Limited, Madras. Trademark Tribunal
| Counsel | For Appellant: Mr. Mohan Dewan, Advocate and For Respondents: Ms. Maya Nichani, Advocate |
| Judges | C. S. Rao, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 12(1), 12(3), 18(1) |
| Citation | 1983 (3) PTC 39 (Reg) |
| Judgement Date | December 17, 1982 |
| Court | Trademark Tribunal |
Judgment:
C. S. Rao, DRTM
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On 17th August 1976, an application was filed, being Application No. 317786, by Venus Laboratories Private Limited, 24, Chellammal Street, 1st Floor, Shenoy Nagar, Madras 600030 (hereinafter referred to as "Applicants") for registration of a trade mark with word VENOPLEX as an essential feature thereof, in respect of goods under Class 5, ultimately amended to read as "Vitamin B complex syrup for sale in the states of Andhra Pradesh, Tamil Nadu in the Union territory of Pondicherry". Applicants sought registration of the mark in Part A of the Register claiming proprietorship thereto on the basis of its user since October 1970 and when some conflicting marks were cited by the Registry, Applicants filed evidence in support of their user. The mark was thereupon ordered to be advertised before acceptance and it was accordingly advertised in Trade Marks Journal Issue No. 732 dated 1st December 1979 at page 1014.
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On 31st December 1979 Dr. Wolfgang Sehwabe and others trading as Dr. Willmar Schwabe, a partnership firm duly registered under the West German Laws having business address and Willmar-Schwabe Str. 4,7500 Kar struhe 41, West Germany (hereinafter referred to as "opponents") filed a notice of opposition, objecting to the registration of Applicants' mark contending mainly, inter-alia (1) that Opponents are established manufacturers and merchants of pharmaceutical and medicinal preparations (more particularly Homeopathic preparations) marketing the same all over the world,
(2) that one of their pharmaceutical preparations is being marketed under the brand name VENOPLANT, which has been used and registered as a trade mark in many parts of the world, including India and that in India VENOPLANT was registered under No. 176825 in class 5 in respect of "chemical preparations for medicinal and pharmaceutical use" and that the said registration is substituting,
(3) that the Opponents' products under the mark VENOPLANT are being marketed in India since 1950 through a net work of dealers and stockists throughout the country, and that a valuable goodwill reputation accrued to the Opponents' mark in India,
(4) that the Applicants' mark is deceptively similar to the Opponents' mark in as much as the first 6 letters in both the marks are identical and when compared as wholes also, the rival marks are phonetically, visually, conceptually and materially similar, with the result that there would be likelihood of confusion, deception and passing off of goods,
(5) that the user claimed by Applicants is not admitted, and
(6) that in any event Applicants' mark is liable to be refused under sections 9, 12(1), 11 and 18 of the Act, as also in exercise of discretion vested in the Registrar.
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Applicants filed a counter-statement denying all the material averments in the notice of opposition and contended that their...
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