Case: Griffon Laboratories Ltd., Bombay Vs Clover Pharmaceutical, Pvt. Ltd., Pune. Trademark Tribunal

CounselFor Appellant: Mr. M.R. Nair, Advocate
JudgesT. R. Subramanian, DRTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 11(a), 12(1), 18(1)
Citation1991 (11) PTC 89 (Reg)
Judgement DateMarch 26, 1991
CourtTrademark Tribunal

Judgment:

T. R. Subramanian, DRTM

  1. On 23.1.1987 an application was filed by M/s Clover Pharmaceuticals Pvt. Ltd., 103, Shivajinagar, Pune-411005 (hereinafter referred to as the applicants) being application No. 466461 seeking registration of a trade mark in Part-A of the register in respect of "Medicinal and Pharmaceutical preparation in class 5". The mark was proposed to be used on the date of the application. The applicants mark comprise of the word LITEXIN. The application was thereafter ordered to be advertised before acceptance and it was accordingly advertised in the Trade Marks Journal No. 955 dated 16.3.1989 at page 1392.

  2. On 4th July, 1989 a notice of opposition was filed by M/s Griffon Laboratories Limited, 20, Haines Road, Bombay 400011 (hereinafter referred to as the Opponents) objecting to the registration of the applicants mark on the grounds inter alia:-

  3. That the opponents have been carrying on a well established business as manufacturers and dealers in medicinal, pharmaceutical preparations and substances for the last several years.

  4. That they are the proprietors of the trade mark consisting of the word "LACTISYN" registered under No. 21.3.09 in class 5 in respect of Pharmaceutical preparations and the same has been advertised in Trade Marks Journal No. 334 dated 1.5.1963.

  5. That the opponents and the predecessors-in-title have been using the said trade mark in respect of Pharmaceutical and medicinal preparations for the past several years and the products has acquired great reputation and popularity and consequently considerable goodwill has accrued to the said trade mark.

  6. That because of the considerable publicity and continuous use the trade mark LACTISYN has become distinctive and exclusively identified by the medical profession, trade and public with the goods of their manufacture and merchandise only.

  7. That the impugned trade mark sought to be registered by the applicants is deceptively similar to their registered trade mark.

  8. That the goods of the applicants and that of the opponents are the same and/or of the same description and that the trade channels for the goods are the same.

  9. That the applicants mark is neither adopted to distinguish nor is capable of distinguishing their goods in the course of trade and hence it is not qualified for registration within the scope and meaning of Section 9 of the Act.

  10. That by virtue of prior adoption and extensive use of opponents mark the applicants must be well aware of the existence of the opponents mark at the time of adoption of their mark.

  11. That in view of the deceptive similarity between the marks a single instance of confusion may lead to disastrous consequences as it concerns the health of human beings, which is of paramount...

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