Case: Glenmark Pharmaceuticals Pvt. Ltd., Bombay Vs Carminol Laboratories Pvt. Ltd., Jaipur. Trademark Tribunal
| Counsel | For Appellant: Mr. V. Narayana Rao, Advocate and For Respondents: Mr. K.B. Marwaha, Advocate |
| Judges | M. C. Gupta, ARTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1), 12(3), 18(1), 18(4) |
| Citation | 1992 (12) PTC 320 (Reg) |
| Judgement Date | October 12, 1992 |
| Court | Trademark Tribunal |
Judgment:
M. C. Gupta, ARTM
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On 23th October, 1992 a word mark FURANOL in class 5 for the goods Medicinal & Pharmaceutical preparations in sought for registration by the above given appicants. The claim of use is from since December, 1978. After due process the impugned mark was advertised before acceptance under section 20(1) proviso vide Trade Marks Journal No. 901 dtd. 16th December, 1986 at page 745.
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On 13th April, 1987 the above given opponents lodged a notice of opposition on form TM-5 objecting to the registration of the aforesaid impugned mark of the applicants on the following grounds:
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That they are the registered proprietors of a trade mark FURAKAL in class 5 in respect of medicinal and pharmaceutical preparations under No. 345732.
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That the impugned mark of the applicants is deceptively similar to the opponents registered mark and is for the same or similar specification of goods and therefore not registrable within the meaning of section 12(1) of the Act.
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That the impugned mark of the applicants does not qualify for registration under section 9 of the Act.
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That the registration of the impugned deceptively similar mark to that of the opponents registered mark is likely to deceive or cause confusion in the trade and therefore prohibited for registration under section 11 of the Act.
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That under the aforesaid circumstances the claim of the applicants with regard to the proprietory rights in the impugned mark cannot be sustained under section 18 of the Act.
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The opponents took objection under sections 9, 11, 12 and 18 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 25th January, 1988 the applicants denied the various averments of the opponents and stated that the impugned mark is being used continuously and uninterrudtedly since the year 1975. Rest of the counter statement is a mere denial of the opponents averments.
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The opponents evidence under rule 53 consists of an affidavit of J. N. Muzumdar dtd. 11th May, 1988 alongwith exhibit-A (annual sales turnover from 1979 to 1987), exhibit-B (sales promotional expenses from 1978 to 1985). The applicants evidence under rule 54 is by way of an affidavit of J.P. Agarwal dtd. 6th August, 1988 alongwith Annexure-A (list of bills from 1974 to 1983-total 10 from A-1 to A-10), Annexure-B (a copy of certificate of registration), Annexure-C (details...
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