{"id":145648,"date":"1998-07-28T00:00:00","date_gmt":"1998-07-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/senior-laboratories-ltd-vs-ms-jagsonpal-pharmaceuticals-on-28-july-1998"},"modified":"2018-11-13T10:33:58","modified_gmt":"2018-11-13T05:03:58","slug":"senior-laboratories-ltd-vs-ms-jagsonpal-pharmaceuticals-on-28-july-1998","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/senior-laboratories-ltd-vs-ms-jagsonpal-pharmaceuticals-on-28-july-1998","title":{"rendered":"Senior Laboratories Ltd. vs M\/S. Jagsonpal Pharmaceuticals … on 28 July, 1998"},"content":{"rendered":"
Delhi High Court<\/div>\n
Senior Laboratories Ltd. vs M\/S. Jagsonpal Pharmaceuticals … on 28 July, 1998<\/div>\n
Equivalent citations: 1998 VAD Delhi 701, AIR 1999 Delhi 102, 1998 (2) ARBLR 403 Delhi, 77 (1999) DLT 187<\/div>\n
Author: K Gupta<\/div>\n
Bench: K Gupta<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
 K.S. Gupta, J.<\/p>\n
 1.     By  the  order  dated July 18,1996 the learned  single  Judge  allowed I.A.99118\/95 and dismissed I.As.12447\/95 & 12451\/95. FAO(OS) No. 292\/96  is directed  against the order in I.As.9918\/95 and 12447\/95 while FAO(OS)  No. 293\/96 against the order in I.A.12451\/95. Since both the appeals arise  out of a common order, we propose to dispose them of this common order.\n<\/p>\n
 2.   Suit for permanent injunction and rendition of accounts etc. was filed by  M\/s.Jagsonpal Pharmaceuticals Ltd., plaintiff\/respondent,  inter  alia, alleging  that  it  is an established company engaged in  the  business  of manufacturing  and marketing of medicinal and pharmaceutical  preparations. Plaintiff  adopted the trade mark SEFLOX on April 1,1990 in respect of  one of its pharmaceutical preparations and has been continuously suing it  upto this time. Plaintiff widely advertised the said trade mark through  different media. It has now become distinctive and associated with the  plaintiff on  account  of  long, extensive and exclusive user thereof.  In  order  to acquire statutory rights of the said trade mark plaintiff filed an application  in the office of Trade Marks Registry at New Delhi for its  registration  under  No.589743 in class 5 of the fourth schedule of the  Trade  and Merchandise  Marks Act, 1958 (for short ‘the Act’) on February 1, 1993.  It is  further alleged that the defendant is also engaged in the  business  of manufacturing  and  marketing pharmaceutical formulations and  adopted  the aforesaid  trade mark in relation to its goods in the first week of  August 1995  as  is evident from the defendant’s notice dated nil  issued  to  the plaintiff  through  counsel Shri S.Subramaniam Reddy.  Defendant  has  been passing  off its goods under the said trade mark as that of  the  plaintiff and  has  not given up the use of the trade mark  despite  the  plaintiff’s communication  dated August 10, 1995. Adoption of the trade mark SEFLOX  by the  defendant is dishonest and the plaintiff has been suffering loss  both in business and reputation.\n<\/p>\n
 3.   Along  with  the suit aforementioned I.A. 9918\/95  under  Order  XXXIX Rules 1 & 2 read with Section 151 CPC was filed by the plaintiff and by the order  dated October 19,1995 M\/s. Senor  Laboratories,  defendant\/appellant was restrained from manufacturing, selling, offering for sale, advertising, displaying,  directly or indirectly dealing in  pharmaceutical  formulation under the said trade mark SEFLOX or any other trade mark identical with  or deceptively similar with that trade mark until further orders.\n<\/p>\n
 4.   Defendant  contested  the suit by filing written  statement.  It  also filed  counter  claim for permanent injunction, rendition of  accounts  and damages against the plaintiff. It is alleged that the defendant coined  and adopted  the  trade  mark SEFLOX in 1991. On December  13,  1991  defendant applied  for  registration  of the said trade mark in its  name  by  filing application  which was numbered as 563781 and is pending before the  Registrar of Trade Marks. On January 23, 1992 defendant was issued a drug  manufacturing  licence bearing No. 980\/AP for various  pharmaceutical  preparations  including SEFLOX. It is further alleged that the defendant has  been selling  the  pharmaceutical preparations under the  aforesaid  trade  mark since  August 1992. In the month of March 1993 when the defendant  came  to know that the plaintiff is also manufacturing and selling its product under the  above trade mark it contacted the plaintiff and the plaintiff  assured that it will give up the use of said mark after exhausting the stock of the manufactured  tablets.  In August 1995 when the defendant learnt  that  the plaintiff  has not given up the use of the said trade mark it got  a  legal notice served on it in the first week of August 1995. Immediately  thereafter  the plaintiff filed the present suit and obtained on ex-parte  interim injunction on false allegations. It is stated that the alleged sales  shown by  the  plaintiff  in Annexure-C to the plaint are totally  false.  It  is denied that the plaintiff widely advertised the aforesaid mark or had  been using  it  since  April 1990, as alleged.  Plaintiff  deliberately  adopted identical  trade  mark to encash upon the goodwill and  reputation  of  the defendant.  Plaintiff being the subsequent user of the said trade  mark  is not entitled to use it.\n<\/p>\n
 5.   In addition to the filing of reply to the plaintiff’s I.A. 9918\/95 the defendant  filed aforesaid I.A.12447\/95 under Order XXXIX Rule 4 read  with Section  151 CPC and I.A.12451\/95 under Order XXXIX Rules 1 & 2  read  with Section  151  CPC. I.A.12447\/95 is for vacating the ex  parte  order  dated October  19, 1995. In I.A.12451\/95 defendant sought to restrain the  plaintiff from manufacturing, selling, offering for sale, advertising,  directly or  indirectly dealing in pharmaceutical preparations under the trade  mark SEFLOX  or any other mark as may be deceptively similar to the  said  mark,
\nlogo or device that may lead to confusing\/deception amounting to the  passing off the plaintiff’s goods for those of the defendant.\n<\/p>\n
 6.   Needless  to  say that the plaintiff filed replies to  both  the  said I.As.12447\/95  and 12451\/95 and the written statement to the  counter-claim preferred by the defendant.\n<\/p>\n
 7.   Through  the  impugned order plaintiff’s application was  allowed  and those of defendant’s were dismissed. Appeals are by the defendant.\n<\/p>\n
 8.   We  have heard the learned counsel of the parties and have  also  been taken through the record.\n<\/p>\n
 9.   In both the appeals controversy centres around the fact as to which of the two parties is entitled to use the trade mark SEFLOX. Indisputably both the defendant\/appellant and plaintiff\/respondent do not have a registration with respect to mark SEFLOX and the case is based on passing off action  at common  law. By catena of decisions it is now settled that a prior user  of trade  mark  has rights even over a later registered user. (See  Bimal  Govindji Shah Trading as Acme Industries Vs. Pannalal Chandulal, 1992(2) Arb. LR 76, Century Traders Vs. Roshan Lal Duggar & Co. & Others, ,  Consolidated Foods Corporation Vs. Bandon & Co. Pvt. Ltd.,  ,  M\/s.  L.D. Malhotra Industries Vs.  M\/s.Ropi  Industries,  ILR 196(1) Delhi 278 and Delco Engineering Works Vs. General Motors Corp.,  ILR 1974 Punjab & Haryana 502).\n<\/p>\n
 10.  Needless to repeat that according to the plaintiff it has been continuously using said trade mark SEFLOX since 1st April, 1990 while as per  the defendant  it has been selling pharmaceutical preparations under  the  said trade  mark from August 1992. Reference to the documents filed by the  parties has become relevant for deciding the said rival contentions. By way of Annexure-C  to the plaint, plaintiff has filed sales figure in  respect  of the medicine sold under the trade mark SEFLOX for the periods April 1993 to March 1994 and April 1994 to March 1995. It has further filed copies of the application No. 589743 dated February 1,1993, application dated August  10, 1995, letter dated April 4, 1990 and the invoices for the years 1993, 94  & 95.  Application  dated February 1, 1993 was filed with  the  Registrar  of Trade  Marks seeking registration of the trade mark SEFLOX and against  the column of user therein words – proposed to be used – are written.  Application  dated  August 10, 1995 was filed seeking amendment in the  column  of user  to  read as ‘from 1-4-1990’ instead of ‘proposed to be used’  in  the said  application.  In the letter dated April 4, 1990 Rs.1500\/-  have  been shown as charges for registration of the trade mark SEFLOX claimed by  Acme Company from the plaintiff.\n<\/p>\n
 11.  As against this, defendant has filed the photostat copy of the renewed drug  licence issued by the Drug Controller, Hyderabad dated  September  1, 1994,  statements  showing annual sales figures of SEFLOX tablets  for  the years 1992 to 1995 in addition to first batch sheet pertaining to  medicine SEFLOX  dated  August 18, 1992 and sales invoices for the periods  1992  to 1995  in  original. As is manifest from the said drug  licence,  originally drug manufacturing licence was issued to the defendant on January 23,  1992 for the products mentioned in the list enclosed therewith. In the  enclosed list name of SEFLOX tablets USP 250 mg and 500 mg appear at serial Nos.11 & 12.   Sales   of  Rs.1,61,406\/40  from  August  1992  to   February   1993, Rs.3,13,528\/40  for the years 1993-94 and Rs.8,38,146\/67 for years  1994-95 have  been reflected in the statements in respect of SEFLOX 250 mg and  500 mg  by the defendant. Original sales invoices filed by the defendant  start
\nfrom September 16,1992 onwards.\n<\/p>\n
 12.  It is pertinent to state that the plaintiff has neither filed the durg licence  for manufacture of medicine under the said trade mark  SEFLOX  nor the sales figure or the invoices in respect thereto for the period prior to 1993. Further, in application No. 589743 filed on February 1, 1993  seeking registration  of  the aforesaid mark by the plaintiff  significantly  words ‘proposed  to the used’ as noted against the column of user were sought  to be  substituted by the plaintiff as ‘from 1-4-1990’ by filing the  application  dated  August 10, 1995 only after receipt of  the  defendant’s  legal notice  through  counsel in 1995. Documentary evidence  referred  to  above placed  on record by the plaintiff prima facie go to show that  it  started using  the trade mark SEFLOX sometime in 1993 instead of since 1-4-1990  as pleaded  in the plaint. On the other hand, use of trade mark SEFLOX by  the defendant  since August 1992 is prima facie established by the  documentary evidence mentioned above filed by the defendant. In the impugned order  the learned single Judge has held that the defendant cannot rely upon the prior user of the said trade mark to non-suit the plaintiff and the plaintiff  is entitled  to the injunction sought for because of its having  invented  the word  SEFLOX. In our opinion, approach of the learned single Judge  on  the matter is contrary to the well established principle of law that no injunction can be issued against a prior user of the trade mark in a passing  off action. Common law of passing off does not recognise a proprietary right of any  kind  whatsoever in an invented word. Thus, the part of  the  impugned order  insofar as it relates to the allowing of I.A.9918\/95 and  dismissing I.A.12447\/95 deserves to be set aside.\n<\/p>\n
 13.  This  brings us to the validity of another part of the impugned  order dismissing I.A.12451\/95 filed under Order XXXIX Rules 1 & 2 and Section 151
\nCPC by the defendant. In an action for passing off, in order to succeed  in getting  an  interim injunction, the party praying for  injunction  has  to establish -(i) distinctive features, (ii) substantial user, and (iii)  wide reputation  of the impugned trade mark. This principle is well  established and has been reiterated in the decision in Khemraj Shrikrishnadass Vs. M\/s. Garg  &  Co and Another,  and the  other  decisions.  The figures as reflected in the statements particularly of the years 1993-94  & 1994-95, in respect of the medicinal preparation marketed by the  defendant under the said trade mark SEFLOX, the sales run into lakhs of rupees, which fact  shows that considerably large number of SEFLOX tablets had been  sold in  the  market. Obviously, this turn over not only  indicates  substantial user but also wide reputation of the medicinal preparation manufactured and sold  by the defendant under the aforesaid trade mark. With regard to  distinctiveness of the title, it would be clear from the literature placed  by the  defendant  on  record that the defendant’s said  trade  mark  contains setting  of words and colour scheme in a particular style. It thus  follows that the defendant who is in prior user, has prima facie made out case  for grant  of  the ad interim injunction sought for. Non-grant of  the  interim injunction is likely to cause irreparable injury to the defendant,  Balance of convenience also lies in defendant’s favour. There cannot be any dispute as  regards  the law laid down in the decisions in S.Pillay &  Another  Vs. G.S.T.Shaik  Thumby  Sahib, AIR 1940 Rangoon 113,  American  Home  Products Corporation Vs. Mac Laboratories Pvt. Ltd. & Another, , J.B.\n<\/p>\n
Williams  Company Vs. H.Bronnley & Co. Ltd., 1909 RPC 765, First  Computers Vs.  A.Guruprasad, 1996 (16) PTC 27 and Bank of Maharashtra Vs. Race  Shipping  &  Transport  Co. Pvt. Ltd. & Another, ,  relied  on behalf of the plaintiff but the same are of on help to the plaintiff as the same are not at all relevant for the purposes of deciding the point,  which has  arisen for consideration, which has been stated by us in  the  earlier part of the order.\n<\/p>\n
 14.  For  the foregoing discussion, both the appeals are allowed.  The  impugned order is set aside. I.A.9918\/95 is dismissed while I.A.12447\/95  and I.A.12451\/95 are allowed. Pending suit the plaintiff\/respondent, its directors,  servants,  agents  and dealers are  restrained  from  manufacturing, selling, offering for sale, advertising, directly or indirectly dealing  in medicinal preparation under the trade mark SEFLOX or any other mark as  may be  deceptively  similar to the said mark which may lead  to  confusion  or deception amounting to the passing off of the plaintiff’s medicinal  preparation as that of the defendant\/appellant. No order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Senior Laboratories Ltd. vs M\/S. Jagsonpal Pharmaceuticals … on 28 July, 1998 Equivalent citations: 1998 VAD Delhi 701, AIR 1999 Delhi 102, 1998 (2) ARBLR 403 Delhi, 77 (1999) DLT 187 Author: K Gupta Bench: K Gupta ORDER K.S. Gupta, J. 1. By the order dated July 18,1996 the learned single Judge […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-145648","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nSenior Laboratories Ltd. vs M\/S. 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