Case: E.R. Squibb & Sons Princeton, New Jersey, USA Vs Biological E. Ltd. Bombay. Trademark Tribunal
| Counsel | For Appellant: Mr. S.B. Shah, Advocate and For Respondents: Mr. I.N. Kayser & Co. |
| Judges | T. R. Subramanian, DRTM |
| Issue | Trade and Merchandise Marks Act, 1958 - Sections 9, 12(1), 18(1) |
| Judgement Date | January 11, 1988 |
| Court | Trademark Tribunal |
Judgment:
T. R. Subramanian, DRTM
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On 1st October, 1980 an application was filed being Application No. 366947 by Biological E. Ltd. having place of business at Das Chambers, 25, Dalal Street, Fort Bombay -- 400 023 (hereinafter referred to as the applicants) seeking registration of a trade mark in Part A of the Registered in respect of pharmaceutical and medicinal preparation in class 5. The mark was proposed to be used and the applicants' mark consists of the word CEFLOR'. The application was thereafter advertised before acceptance and it was accordingly advertised in the Trade Marks Journal No. 786 dated 1-3-1982 at page 881.
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On 31st May, 1982 a notice of opposition was filed by M/s E.R. Squibb & Sons, Inc, of Lawrenceville-Princeton Road, Princeteon, New Jersey 08540 (hereinafter referred to as the Opponents) objecting to the registration of the applicants' mark on the ground interalia:
That the opponents are the proprietors of the trade mark 'SEFRIL' registered in class 5 under No. 274686 dated 2-9-1971 in respect of medicinal and pharmaceutical preparations including an Antibiotic preparation.
That the said trade mark 'SEFRIL' had been registered by the opponents in several countries of the word and has been extensively used there.
That the applicant's mark is deceptively similar to the aforesaid opponents' trade mark.
That the applicants mark CEFLOR is not qualified for registration under Section 9 (1) of the Act as 'CEFLORIDINE' is a non-proprietary name given to an antibiotic by the World Health Organisation of which India is a member.
That accordingly the applicants mark should be refused registration under Section 9, 12(1) & 18(1) of the Act.
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The applicants filed a counterstatement denying all the material averments in the notice of opposition and contended that they have no knowledge of the opponents mark 'SEFRIL'. They also submitted that they had coined the mark CEFLOR in 1980 that there is no possibility of confusion or deception whatsoever between the two marks.
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The opponents filed an affidavit of Shri Rita. V. Hauck, Secretary of the Opponent Company as evidence in support of the opposition while the applicants filed the affidavit of Shri. S. V. Shenoy, Manager of the applicant firm as evidence in support of application. The opponents filed their evidence in reply in the form of an affidavit from Shri Rita V. Hauck.
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The matter ultimately came up for hearing before me on 28-12-1987 when Shri S.B. Shah, Advocate...
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