Case: Hema Laboratories, Surendranagar Vs Themis Chemicals Limited, Bombay. Trademark Tribunal

CounselFor Appellant: Mr. R.R. Shah and Ms. Vakeria, Advocate and For Respondents: Ms. Zaveri instructed by Mr. Vijay Shah, Advocate
JudgesK. C. Kaliasam, JRTM
IssueTrade and Merchandise Marks Act, 1958 - Sections 12(1), 12(3), 18(1)
Citation1990 (10) PTC 31 (Reg)
Judgement DateDecember 02, 1986
CourtTrademark Tribunal


K. C. Kaliasam, JRTM

  1. On 1-4-1977, Themis Chemicals Limited, 38 Suren Road, Bombay-400 093 (herein-after referred to as "The Applicants") filed an application for registration of a trade mark consisting of the word "OXYRIN" in respect of "pharmaceutical preparations for the treatment of inflammatory disorder". The said application was advertised before acceptance in the Trade Mark Journal No. 717 dated 16-5-1979 at page 103.

  2. Ashwin Bhandulal Shah, Jayant Chandulal Shah, Mrs. Manjulaban Ghandulal Shah and Mrs Jyotiban Jyant Shah, trading as Hema Laboratories, Vadodaria Chambers, Opp: Junction Station, Surendranagar (hereinafter referred to as "the opponents") filed a notice of opposition to the aforesaid application inter alia on the following grounds: -

  3. That the opponents are the registered proprietors of the trade mark consisting of the word OXIRIL per se registered under No. 284260 in Class 5 in respect of Antirhuematic and anti-flamation preparation and the registration is valid and subsisting.

  4. That by reason of long and extensive user, the said mark OXIRIL has come to be exclusively associated by the members of the medical profession and the trade with the opponents and their products only;

  5. The use and registration of the Applicants' mark is prohibited under section 12(1) of the Act.

  6. That by reason of use and reputation of the Opponents' trade mark OXIRIL, the use of the Applicants' trade mark is likely to deceive or cause confusion in the course of trade and accordingly their registration of the trade mark OXYRIN would be contrary to the provisions of section 11(a) of the Act.

  7. That the Applicants are not entitled to concurrent registration under section 12(3) of the Act.

  8. The Applicants filed a counter-statement denying the allegations of the Opponents and pleading that in any case they are entitled to registration within the meaning of section 12(3) of the Act.

  9. Though the Opponents took extension of time from time to time for filling evidence in support of the opposition they did not file any such evidence and ultimately his letter dated 15-12-1980, the Opponents' Advocate wrote to the Registrar saying that the Opponents do not wish to adduce evidence but shall rely on the notice of opposition. The evidence is support of the application consists of the affidavit of Naina Rajan Desai dated 13-3-1981 who is an executive of the Applicants' company. The evidence in reply is by way of affidavit dated 26-5-1981...

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