Case: F. Hoffmann-La Roche and Company Limited Vs Dhootapapshawar Limited. Trademark Tribunal
| Counsel | For Appellant: Mr. V.G. Nair, Advocate instructed by M/s. DePenning & DePenning and For Respondents: Mr. H.W. Kane, Advocate instructed by W.S. Kane & Co. |
| Judges | M. C. Gupta, ARTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 11(a), 12(1), 18(1) |
| Citation | 1988 (8) PTC 338 (Reg) |
| Judgement Date | September 12, 1988 |
| Court | Trademark Tribunal |
Judgment:
M. C. Gupta, ARTM
This order will dispose of Opposition No. BOM-6393 filed by the above named Opponents in respect of Application No. 399815 in Class 5 of 10-1-1983 filed by the above named Applicants in respect of "Ayurvedic medicinal preparations for human use and veterinary use". This application was advertised before acceptance under Section 20(1) (proviso) vide Journal No. 883 dated 16-3-1986. The mark was proposed to be used on the date of the application.
The Grounds taken by the Opponents are under as:
That the Opponents are the registered proprietors of trade mark AROVIT registered under No. 140258 as of 30th August, 1949 in respect of "Pharmaceutical preparations for human use and for veterinary use and infants and invalids food". The aforesaid trade mark of the Opponents is valid and duly renewed and is valid, subsisting and in force. The trade mark of Applicants consisting of the word AFROVIT is identical with and/or deceptively similar and/or confusingly similar to the registered trade mark of the Opponents.
That the goods covered by the impugned application are identical to and/or of the same description as the goods in respect of which the Opponent's trade mark is registered.
That the contemplated use of the impugned trade mark by the Applicant is likely to deceive or cause confusion in the normal course of trade or business;
That the registration of the impugned trade mark in the name of the Applicants would be contrary to the provisions of Sections 9(1), 11(a), 11(e), 12(1) and 18(1) of the Trade and Merchandise Marks Act, 1958.
In support of the notice of opposition, the Opponents filed evidence by way of two affidavits of Peter Ziegler dated 1-12-1986 and 3-2-1988 along with specimen bills, invoices, orders, publicity materials and other documents.
The Applicants filed an affidavit of Anand Puranik, Managing Director of the Applicant's Company dated 16-10-1987 by way of evidence in support of the application in above proceedings.
The matter came up before me for hearing on 8-9-1988 in the presences of Shri V.G. Nair, Advocate, instructed by M/s. De Penning & De Penning for the Opponents and Shri H.W. Kana, Advocate, instructed by M/s. W.S. Kane & Co. for the Applicants.
First I shall consider the objection under section 12(1) to the Applicant's mark in considering this, two points arise -
Whether the marks are identical or deceptively similar; and
Whether the goods are the same or of the same description. Regarding the point whether the goods are the same or of the same description, admittedly the goods under the application and the goods for which the Opponent's mark is registered are "medicinal preparations" though the Applicant's goods are designated as "Ayurvedic medicinal preparation" whereas no such distinction exists in respect of the goods of the Opponents" mark.
The Applicant's stated that it is well settled that ayurvedic and allopathic branches of medicines are entirely different. They are practiced by different doctors and the patients who comsume ayurvedic medicines will not go for allopathic medicines and vice-versa. The applicants also submitted that the goods are manufactured by different manufacturer. The trade channels are different and therefore the goods are of different description though the goods in respect of which both the trade marks in question are "Vitamin preparation". The Opponents have stated that the medicinal preparations are goods of the same description whether Ayurvedic or Allopathic. The goods are sold in the same shops over the same counter and to the same class of customers. The Opponent's mark is not confined to allopathic preparation only and therefore it must be deemed to be taken for "medicinal preparation" in general. The learned counsel for the Opponents stated that the fact that both the goods are "medicinal preparation" and are to be regarded as such for the purpose of determining the deceptive similarity of the trade mark under Section 12(1). The Opponents also submitted that it is very common to find doctors who would normally treat patients with allopathic medicines to recommend homeopathic and/or ayurvedic medicines for certain complaints and similarly both ayurvedic preparations and allopathic preparations do have a common outlet through the same druggists/chemists. In support of this, the Opponents have filed a cash memo marked "A" showing the purchase of ayurvedic and allopathic...
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