{"id":28692,"date":"2002-04-16T00:00:00","date_gmt":"2002-04-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mehta-unani-pharmacy-co-vs-amrutanjan-limited-on-16-april-2002"},"modified":"2016-04-27T22:06:17","modified_gmt":"2016-04-27T16:36:17","slug":"mehta-unani-pharmacy-co-vs-amrutanjan-limited-on-16-april-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mehta-unani-pharmacy-co-vs-amrutanjan-limited-on-16-april-2002","title":{"rendered":"Mehta Unani Pharmacy & Co vs Amrutanjan Limited on 16 April, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
Mehta Unani Pharmacy & Co vs Amrutanjan Limited on 16 April, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n In the High Court of Judicature at Madras\n\nDated: 16\/04\/2002\n\nCoram\n\nThe Honourable Mr.Justice R.Jayasimha Babu\nand\nThe Honourable Mr.Justice A.Kulasekaran\n\nOriginal Side Appeal No.364 of 1997 and OSA.No.373 of 1997\n\n1. Mehta Unani Pharmacy & Co.,\n   Amrutamanthan House,\n   Chhatralaya Road,\n   Sadar, Rajkot 1.\n\n2. Mehta Unani Pharmacy & Co.\n                (P) Ltd.,\n   Amrutamanthan House,\n   Chhatralaya Road,\n   Sadar, Rajkot 1.                             Appellants in OSA\n                                                        No.364 of 1997 and\n                                                        Respondents in OSA<\/pre>\n
                                                        No.373 of 1997<\/p>\n
vs.\n<\/p>\n
Amrutanjan Limited,
\n42-45, Luz Church Road,
\nMylapore, Madras 4.                             Respondent in OSA
\n                                                        No.364 of 1996 and
\n                                                        Appellant in OSA
\n                                                        No.373 of 1997.\n<\/p>\n
                Appeals filed under Order XXXVI Rule 1 of  the  Original  Side
\nRules  read with Clause 15 of the Letters Patent Act against the judgment of a
\nlearned single Judge of this Court in C.S.  No.42 of 1987 dated 28.0 7.1997.<\/p>\n
\n\n!For appellants in\nOSA.364 of 1997 &\nrespondents in OSA\nNo.373 of 1997          : Mr.C.S.Gopalakrishnan,\n                          for M\/s.Mohan Associates.\n\n^For Respondent in\nOSA.364 of 1997 &\nappellant in OSA.\nNo.373 of 1997.         : Ms.Gladys Daniel, for\n                          Mr.C.Daniel.\n\n\n:Judgment\n\n(Judgment of the Court was delivered by\nR.Jayasimha Babu, J.)\n\n<\/pre>\n
        The appeals filed are against the judgment of the learned single Judge
\nwho has given the declaration that had been sought by the plaintiff Amrutanjan
\nLimited against the appellants in  O.S.A.    No.364  of  1997  –  Mehta  Unani
\nPharmacy  &  Company  and  Mehta Unani Pharmacy & Company Private Limited, who
\nwere the defendants in that suit, that the claim made by the  defendants  that
\nthey  are  exclusive  owners of the expression ‘Cold Rub’ is unjustifiable and
\nhas injuncted them permanently  from  threatening  the  plaintiff  by  issuing
\nmemos,  circulars, advertisements or notices, directly or indirectly declaring
\nthat the expression ‘Cold Rub’ shall not be used by anyone.\n<\/p>\n
        2.  The threat which the plaintiff had alleged to  be  groundless  has
\nbeen held out in the advertisement issued in ‘Times of India’ dated 06.09.1986
\nby the  defendants  in  the suit.  That notice titled ` CAUTION NOTICE’, after
\nreferring to the fact that the defendants in the suit who were the  owners  of
\nthe  registered  trade  mark ‘COLDRUB’ in respect of vapourising ointment have
\nobtained ad interim injunction against M\/s.Warner Hindustan Limited of  UPPAL,
\nWaraneal Road,  Hyderabad  and  M\/s.    Akin  Laboratories  Private Limited at
\nHyderabad, from the District Judge, Rajkot;  went  on  to  state  —  ‘anybody
\nmanufactures or sells or markets the said vapourising ointment under the trade
\nmark ‘ COLDRUB’ shall be liable for breach of injunction and\/or in contempt of
\nCourt.  TAKE NOTICE.”\n<\/p>\n
        3.   It  was the case of the plaintiff before the trial Court that the
\nplaintiff is the owner  of  the  trade  mark  ‘Amrutanjan  and  Anoleum;  that
\n`Anoleum’  had  been  advertised  by  it  along  with  descriptive  expression
\n‘COLDRUB’, such advertisements have been effected from 1969 onwards; that  the
\nplaintiff had  obtained  a  decree  in  C.S.   No.269 of 1977 against the same
\ndefendants against infringing the plaintiff’s mark on account of  the  use  by
\nthe  defendants  by  name  ‘AMRUTMANTHAN’; that the defendants had applied for
\nregistration of the mark `ATMAMANTHAN’ in the year 1977 and had on  10.07.1978
\nundertaken  to  disclaim  the  descriptive  expression  ‘COLD  RUB’  which had
\nappeared in it’s Trademark Application No.329747; that in a suit filed by  the
\nmanufacturers  of  Vicks  Vaporub in the year 1982, the defendant had filed an
\naffidavit stating that ‘COLDRUB’ is a descriptive expression  and  that  after
\nhaving  taken  that stand the defendants had on 07.07.1983 applied to register
\nthe term ‘COLDRUB’.  The application for registering the same  name  was  also
\nfiled by the defendants on 02.01.1986 and that the advertisement issued by the
\ndefendants  in  the `Times of India’ on 06.09.1986 threatened all persons with
\nan action of proceedings for breach of injunction and for  contempt  of  court
\nand  that the plaintiff being aggrieved by the threat, had instituted the suit
\nseeking reliefs under Section 120 of the  Trade  and  Merchandise  Marks  Act,
\n1958.\n<\/p>\n
        4.   The  suit was resisted by the defendants who did not specifically
\ndeny that the advertisement had indeed been issued by the  defendants  in  the
\n‘Times  of  India’  and  that `Times of India’ did have all India circulation.
\nThe defendants raised various r pleas with regard to  that  mark  having  been
\nregistered in their favour under the trade mark name ‘ATMAMANTHAN’ Cold Rub as
\nTrademark No.329747.    They  also  raised  other  pleas which resulted in the
\nlearned single Judge having had  to  frame  as  many  as  nine  issues.    The
\nadvertisement  issued  by  the  defendants in Times of India on 06.09.1986 was
\nmarked as Ex.P.22 at the trial.  The four advertisements which  the  plaintiff
\nhad  issued  in ‘ Kumudam’ issues dated 09.10.1969, 30.10.1969, 20.11.1969 and
\n11.12.1969 were together marked as Ex.P.37.   The  letter  of  the  defendants
\nthrough their Attorney dated 10.07.1978 disclaiming the descriptive expression
\n‘COLDRUB’  appearing  in  the  trade  mark Application No.329747 was marked as
\nEx.P.20.  A copy of the affidavit filed by the defendants in the case  against
\nthem  by  Vicks  Vaporub  and  in  which  affidavit  it had been stated by the
\ndefendants that ‘Cold Rub’ is a descriptive expression, was marked as Ex.P.23.\n<\/p>\n
        5.  The learned single Judge framed the following issues:\n<\/p>\n
1.Whether part of the cause of action for filing this suit has  arisen  within
\nthe jurisdiction of this Court or not?\n<\/p>\n
2.  Whether the defendants have not been using the expression ‘COLD RUB’ since
\n1970 along with the Trade Mark ‘ATHMAMANTHAN’?\n<\/p>\n
3.Who  has adopted the expression ‘COLD RUB’ earlier, whether the plaintiff or
\ndefendants to sell their respective  product  along  with  their  trade  names
\nnamely ‘ANOLEUM’ and ‘ATHMAMANTHAN’?\n<\/p>\n
4.Whether  the  expression ‘COLD RUB’ found in the label mark registered under
\nNo.329747 dated 13.10.1977 in Class 5 in favour of the defendants is  a  Trade
\nMark  by  itself as defined in Section 2(V) or mere mark as defined in Section
\n2(J) of the Trade and Merchandise Marks Act, 1958?\n<\/p>\n
5.Is it not lawful for the  defendants  to  claim  exclusive  right  over  the
\nexpression ‘COLD RUB’?\n<\/p>\n
6.Is the plaintiff entitled for declaration and for injunction as prayed for?\n<\/p>\n
7.Whether the suit is maintainable under Section 120 of the Trade Marks Act as
\nthe word ‘COLD RUB’ is an exclusive coined word belonging to the defendant?\n<\/p>\n
8.Whether  there  is a disclaimer of the word ‘COLD RUB’ as contemplated under
\nSection 17 of the Trade Marks Act?\n<\/p>\n
9.To what other relief?\n<\/p>\n
The documents which had been marked  before  the  learned  single  Judge  were
\nExs.P.1 to  P.59  and Exs.D.1 to D.14 all of which were marked by consent.  No
\noral evidence was let in by the parties.\n<\/p>\n
        6.  All the issues framed were framed on the basis  of  the  pleadings
\nfiled by  the parties.  On issue No.1 as to whether the Court has jurisdiction
\nto entertain the suit, the learned single Judge held that a part of the  cause
\nof action did arise within the jurisdiction of this Court and while holding so
\nobserved  that  the  counsel  for the defendants had not raised any objections
\nregarding jurisdiction, in the course of the trial.  On issue No.2 he has held
\nthat the defendants had been using the expression ‘COLDRUB’ since  1970  along
\nwith trade  mark  Atmamanthan.   On issue No.3 he held that the mark ‘COLDRUB’
\nwas used by the defendants from 1970.  While so holding he did not  advert  to
\nEx.P.37  ‘Kumudam’ advertisements to which there is no reference at all in the
\njudgment.  On issue No.4 as also issue No.8 he did not record any finding  as,
\nin his view, he did not consider it necessary to do so.  On issue No.5 as also
\non issue No.6 he held that ‘COLDRUB’ is a descriptive word; that neither party
\nto  the  suit  had  coined the word; that the plaintiff is entitled to use the
\nterm as a bona fide description of it’s products in terms of Section 34 of the
\nAct and held that the plaintiff was entitled to declaration and injunction  as
\nprayed for.  On issue No.7 he held that the suit was maintainable.\n<\/p>\n
        7.   In  the  appeal filed by the defendants it was submitted that the
\nCourt did not have jurisdiction to maintain the suit.  Having omitted to  even
\nargue  that  point  before  the  learned  single  Judge, it is not open to the
\nappellants now to contend that the single Judge ought to have  held  that  the
\nCourt had  no  jurisdiction  to  try  the  suit.    Even otherwise there is no
\nsubstance in this contention.  In the written statement  filed,  there  is  no
\ndenial  of  the  fact  that the advertisement had been issued in the ‘Times of
\nIndia’ and ‘Times of India’ had wide circulation in different parts  of  India
\nincluding Chennai.    The  appearance of an advertisement in a newspaper which
\nhas circulation in the area is sufficient to enable the aggrieved plaintiff to
\ninvoke the jurisdiction of this Court as, a part of the cause of action can be
\nsaid to arise by reason of such circulation within  the  jurisdiction  of  the
\nCourt.\n<\/p>\n
        8.   Counsel  further  submitted  that  Section  120  of the Trade and
\nMerchandise Marks Act could not have been invoked  by  the  plaintiff  as  the
\nnotice Ex.P.22  was  not  addressed  to  the  plaintiff.  It was urged that in
\nSection 120 of the Act a reference is made to `a person’ and therefore, it  is
\nonly  persons  to whom the threat is directed individually who can seek relief
\nunder Section 120 of the Act.  It is useful at this point to set  out  Section
\n120 of the Act which reads thus:\n<\/p>\n
120.  Groundless threats of legal proceedings:\n<\/p>\n
(1)  Where  a  person,  by  means  of  circulars, advertisements or otherwise,
\nthreatens a person with an action or proceedings for infringement of  a  trade
\nmark  which  is  registered,  or  alleged  by  the firstmentioned person to be
\nregistered, or with some  other  like  proceeding,  a  person  aggrieved  may,
\nwhether  the  person  making the threats is or is not registered proprietor or
\nthe  registered  user  of  the  trade  mark,  bring   a   suit   against   the
\nfirst-mentioned  person  and  may  obtain a declaration to the effect that the
\nthreats are unjustifiable, and an injunction against the  continuance  of  the
\nthreats, and may recover such damages (if any) as he has sustained, unless the
\nfirst  mentioned  person satisfies the Court that the trade mark is registered
\nand that the acts in respect of  which  the  proceedings  were  threatened  to
\nconstitute, or, if done, would constitute, an infringement of the trade mark.\n<\/p>\n
        (2)  The  last  preceding sub-section does not apply if the registered
\nproprietor of the trade mark, or a registered  user  acting  in  pursuance  of
\nsub-section  (1) of Section 51, with due diligence commences and prosecutes an
\naction against the person threatened for infringement of the trade mark.\n<\/p>\n
        (3) Nothing in this section shall render a  legal  practitioner  or  a
\nregistered  trade  mark’s  agent  liable  to  an  action under this section in
\nrespect of an act done by him in his professional  capacity  on  behalf  of  a
\nclient.\n<\/p>\n
        (4)  A suit under sub-section (1) shall not be instituted in any Court
\ninferior to a District Court.\n<\/p>\n
        9.  The opening part of Section refers to ‘a person’ who by  means  of
\ncirculars,  advertisements  or  otherwise threatens a person with an action or
\nproceedings for infringement of trade mark.  The means employed to  pose  such
\nthreats referred to in the section are circulars, advertisements or otherwise.
\nWhat  is  sought to be emphasised by the section by use of those terms is that
\nthe threat need  not  be  contained  merely  in  a  letter  addressed  to  the
\nindividual concerned, but that threat could be held out in circulars which are
\nmade  available  to a large number of persons as also in advertisements put up
\nin newspapers which have large circulation.  The scope  of  expression  of  ‘a
\nperson’  used in the section must, therefore, be ascertained in the context of
\nthe reference to circulars  and  advertisements.    ‘Person’  referred  to  in
\nSection 120 of the Act is the person who feels threatened by the action of the
\nperson  who  has issued the circulars, advertisements or otherwise, the threat
\nbeing an action or proceedings  for  infringement  of  a  trademark  which  is
\nregistered  or  alleged  to be registered or with some other like proceedings.
\nThe right given under the section to invoke the jurisdiction of the  Court  is
\nto `a  person aggrieved’.  There is nothing in the section which would support
\nthe interpretation sought to be placed on it by the learned  counsel  for  the
\ndefendants who seeks to confine the scope of the term `threatens a person to a
\nnamed individual.    The threat can be made to a `body of persons’ of whom the
\nperson who invoked the jurisdiction under Section 120 of the Act may  be  one,
\nif he is aggrieved by the threat held out.\n<\/p>\n
        10.  The threat held out in this case in the notice that was issued in
\nthe  newspapers  is  to  `anybody,  who  manufactures  or sells or markets the
\nvapourising ointment under the trade mark ‘COLDRUB’.  The threat held  out  in
\nthat  notice  to  anybody  is  in fact a threat to everybody who manufactures,
\nsells or markets  the  vapourising  ointment  in  the  name  ‘COLDRUB’.    The
\nplaintiff  admittedly  being  such a manufacturer, who used the word ‘COLDRUB’
\nwas certainly a person who had been threatened with an action by reason of  an
\nadvertisement  and  was  entitled  to  invoke the protection of Section 120 by
\ninitiating the proceedings thereunder.    The  proceedings  initiated  by  the
\nplaintiff was maintainable under Section 120 of the Act.\n<\/p>\n
        11.   Learned counsel for the defendants then submitted that the whole
\nproceedings was rendered infructuous by reason of the defendant having filed a
\nsuit in the High court of Delhi on 13.08.1989 in C.S.  No.158 of 1989 alleging
\ninfringement of their trademark, that  suit  having  been  filed  against  the
\nplaintiff in  the  suit from and out of which this appeal had arisen.  In that
\nsuit there is no interim order in favour of the plaintiff in that suit who  is
\nthe defendant in the suit from which this appeal had arisen.\n<\/p>\n
        12.   Sub-section  (2)  to Section 120 of the Act on which reliance is
\nplaced by counsel provides that sub-section (1) of Section 120 will not  apply
\nif  the  registered  properietor  of  the mark, or a registered user acting in
\npursuant to sub-section (1) of Section 51 ‘with due diligence’  commences  and
\nprosecutes an action against the person threatened for the infringement of the
\ntrademark.  The  facts  of  the case show that the suit in C.S.  No.42 of 1987
\nwas filed in this Court on 15.12.1986 within three months from the date of the
\nadvertisement issued in ‘Times of India’ on 06.09.1986.  It is only some 2-1\/2
\nyears after the institution of the suit that the defendants filed the suit  in
\nC.S.  No.158 of 1989 in the High Court at Delhi.  This long interval cannot be
\nregarded  as  evidence of ‘due diligence’ referred to in section 120(2) of the
\nAct.  The fact that the suit came to be filed by  the  defendants  after  this
\nCourt  had  in  an  interim order held that the institution of such a suit was
\npermissible even  after  a  proceeding  under  Section  120  of  the  Act  was
\ninitiated,  cannot  be  of  any assistance to the defendants when they seek to
\ncontend that the belated institution of the suit should still be  regarded  as
\namounting to  due diligence on their part.  It cannot, therefore, be said that
\nthe filing of the suit by the defendants about 2-1\/2 years later in  the  High
\nCourt  at  Delhi  would have the effect of rendering the earlier suit filed by
\nthe plaintiff here, infructuous.\n<\/p>\n
        13.  Counsel also contended that the learned trial  Judge  should  not
\nhave framed the issues that he has, as the scope of the suit under Section 120
\nis  limited  to  deciding  as  to whether the threat held out was justified or
\nunjustified, and to grant or refuse an injunction against the  continuance  of
\nthose threats.\n<\/p>\n
        14.  As noticed earlier, the issues framed were issues which arise out
\nof the  pleadings  in  the  suit.  The defendants having sought to justify the
\nthreats held out, the tenability or otherwise of the justification so  offered
\nhad   necessarily  to  be  examined  by  the  Court  and  to  facilitate  such
\nexamination, the framing of the issues with reference to the pleas raised  was
\nrequired  and it cannot, therefore, be said that the matters dealt with by the
\nlearned single Judge are outside the purview of Section 120 of the  Act.    In
\nrespect  of  those  issues which were not necessary, i.e., issues 4 and 8, the
\nlearned Judge has not recorded any finding.  The validity of  the  trade  mark
\nwhich  was  raised  in  issue  No.4  was rightly not considered as, it was not
\nnecessary to consider and pronounce on the validity  of  the  registration  in
\nthis proceedings.    The learned trial Judge had also not recorded any finding
\non the question as to whether  there  was  a  disclaimer  as  contemplated  by
\nSection 17  of  the  Trademarks  Act.   All the issues on which he has entered
\ndecision are issues which are relevant for the purpose of findings the  extent
\nof reliefs to be granted under Section 120 of the Act.\n<\/p>\n
        15.   One more argument that was raised for the defendants needs to be
\nnoticed.  It was submitted for them that notice had been issued bona fide  and
\nthat  therefore such a notice should not be regarded as amounting to a threat.
\nIn this context, attention was invited to  Narayanan’s  book  on  the  Law  of
\nTrademarks and Passing Off, 4th Edition, wherein at page 671 it is stated that
\n‘a  general  warning or cautionary notice to the public regarding infringement
\nof the rights of the owner of patent, trademarks  or  copyright  published  in
\ngood faith  may  not amount to a libel’.  In support of that proposition three
\nold English cases are referred to.  Those cases have not been placed before us
\nnor have the provisions of the statute considered therein been  placed  before
\nus.  The  question  here  also  is  not  libel.    The question here is one of
\nprotecting the person entitled to such a protection against groundless threats
\nor action, where a threat which is found to be groundless cannot  be  regarded
\nas having  been  made  bona  fide.    The plea of bona fide now raised is also
\nwithout any substance.  The defendants themselves had filed  an  affidavit  in
\nanother  proceedings  saying that ‘COLD RUB’ is a descriptive expression which
\nprima facie, indeed, it is.  It is also the case of  the  plaintiff  that  the
\ndefendants  had specifically undertaken to disclaim the descriptive expression
\n‘ COLDRUB’ appearing in the trademark application.  Having taken  that  stand,
\nit  can  hardly  be  said  that the defendants were acting bona fide when they
\nasserted a claim and on such assertion held out a  threat  of  action  against
\nanyone-else  using  the  words ‘Cold Rub’ which two words clearly are words of
\ncommon use and are indeed descriptive.\n<\/p>\n
        16.  We find no merit in the appeal filed by the defendants in  O.S.A.
\nNo.364 of 1997 and the same is dismissed.\n<\/p>\n
        17.  In so far as the appeal filed by the plaintiff with regard to the
\nfinding  on  issue  No.3 is concerned, even the defendants did not dispute and
\nrightly so, the fact that the relevant material evidence which had been placed
\nbefore the Court, namely Ex.P.37 had not  been  looked  into  by  the  learned
\nsingle Judge.   These advertisements are part of the documents produced by the
\nplaintiff which had been admitted by consent as  documents  in  the  case  and
\nmarked.  The   authenticity   of   the  documents  are  not  in  issue.    The
\nadvertisement effected for the product Anoleum combined with the  words  ‘Cold
\nRub’  in the year 1969 which is prior to the year 1970 when even, according to
\nthe defendants, they had not used  those  words  prior  to  that  year,  would
\nclearly  show  that  the  plaintiff  had  used  those words at a time when the
\ndefendants had not commenced it’s user.  The finding recorded by  the  learned
\nsingle Judge on issue No.3 is erroneous and is set aside.  In it’s place shall
\nbe  recorded  a finding that the expression ‘Cold Rub’ had been adopted by the
\nplaintiff prior to it’s adoption by the defendants.  The plaintiff’s appeal in
\nO.S.A.  No.373 of 1997 shall stand allowed.\n<\/p>\n
(R.J.B.,J.) (A.K.,J.)
\n16.04.2002
\nIndex:- Yes<\/p>\n
Website:- Yes
\nCopy to
\nThe Sub Assistant Registrar,
\nOriginal Side,
\nHigh Court,
\nMadras.\n<\/p>\n
mf
\nR.Jayasimha Babu, J.\n<\/p>\n
And
\nA.Kulasekaran, J.\n<\/p>\n
O.S.As.  No.364 and 373 of 1997
\n16.04.2002<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Mehta Unani Pharmacy & Co vs Amrutanjan Limited on 16 April, 2002 In the High Court of Judicature at Madras Dated: 16\/04\/2002 Coram The Honourable Mr.Justice R.Jayasimha Babu and The Honourable Mr.Justice A.Kulasekaran Original Side Appeal No.364 of 1997 and OSA.No.373 of 1997 1. Mehta Unani Pharmacy & Co., Amrutamanthan House, Chhatralaya […]<\/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":[8,13],"tags":[],"class_list":["post-28692","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nMehta Unani Pharmacy & Co vs Amrutanjan Limited on 16 April, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mehta-unani-pharmacy-co-vs-amrutanjan-limited-on-16-april-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mehta Unani Pharmacy & Co vs Amrutanjan Limited on 16 April, 2002 - 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