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  • Manu SC 0302 1969 BLR

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    MANU-SC-0302-1969-BLR

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    74 views6 pages

    Manu SC 0302 1969 BLR

    Uploaded by

    s_navroop

    Copyright:

    © All Rights Reserved
    Download as PDF or read online from Scribd
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    of 6
    1080,] BORA Hy ADVANE ©. me TATE (6.6) —Miter J, uo Present : Mr, Justee J. Shah and str, Justice ¥, Ramanan. ¥, HOFFMANN-LA ROCHE AND CO. LTD. v. GEOFFREY MANNERS AND CO. PRIVATE LTD.* rade and Merchandise Marks Act (4 of 1058), Set. 1, 12 (N), 9 (1) (0), 9 (8) Deng Rute, 1066, Wele Gx (2)-—Trade marks “Proleaie” and "Dropoeit™ in respect of stamin preparations — Whether taler mark Whely. to deceive oF cause canfusion—“Dropoct” whither an énconted twvrd—Tel (9 determine whther propowed trade mark hey lease decrption oF cofusion ‘The appellants true mark “Protavit™ was registered in respect of medicinal and phar tmaceutieal preparations and substanccs and was used on multi-vitamin preparations in Tui and (able forms. The respondents trade mark “Dropovit” was subsequently regis tered in respeet of medicinal and pharsnaceutea! preparstions and substances but the rs- ponidente restricted the designation of thelr goods to medicinal and pharmaceutieal Preparation and substaness containing principally viterine, On the question whether the Fespondents” meni ro neanlyreseribled the appellants’ mark ne to be likely t@ deceive oF feasse confision and whether the respondents mark yeas ot an invented Word = No, 2890 of 1966, 13 (900) ALR, 8.6. 432, SDeclet) Neptonder 5, 1050, Civil Appoat 120 ‘THE BOMBAY LAW REPORTER, [vou nxn. Held, that, in the clroumatanoes ofthe ease, Uhere was no roul tangible danger of cont son lf he respondents trade marke wns allowed to cootinuc to remain on the Negister, and that the word * Dropovit was en Sovented word and was, therefore, entitled to. be registered av a trade mark and ran aot lable to be removed frou the, Register, ‘Under s. 12 (1) of the ‘Trude und Mevchaniw Markn Act, 1059, it fy aul necessary Uhl ft should Ye inleue to deceive ur intended 19 cause confusion, Te 4 its probable eect ‘un the ordinury kind of customers Chat one as to consider. Te is necessary 10 apply both ‘the visual ana phonede tests or comparieon of Ue Words Of two matkS, Ie MaTKS Ist bbe compared as wholes. It isnot sight to take a portion of the word wnd say that boeaure ‘that portion of the word dtters from the coresponding portion of the word in the other ‘cae there is no sufficient similarity to eause confusion. ‘The true test ia whether the tour lity of the proposed trade mark is such thot itis Iely to eause deception or confusion. ox Iistake in the minds of persons accustomed to the existing trade mar Parker-Kaull Timi v- Koll Tetrnatinal Finite, fn the Moe of om Appliatin by ‘he Pianotst Company TA, for the Registration of e Prods Mart, Arete, Lv. Ryata, 143, Larroma case: Pokalon LA. Davidson Cos, Diabolo cam, and We Cerdoca v. Vick Chemical Coy. reterred to. K. 5. Shavalsha and R.A, Shah, J.B. Dadachanji, of J.B. Dadachanjt and Coy and Miss Bhucancsh Kumari, for the appellant. MC. Chagla, with I. M. Chagla and Anoop Singh, and M,N. Shroff. tor IN. Shroff. for the respondent. Rasswant J, This appeal is brought by certificate from the judgment of the Bompuy High Comet datal Angurt 1h 1384 im apptetion Na. of 1982p holding in part he judgment of Me. Justi Taskande need Decerber7, 1062 95 Mellons Potion Ma ofa. e appellnt is a Himiied lability eompany incorporated under the laws of Switeeinnd and caring an butinou nthe reonafactare and tale of pharmaces- tical and chomlea! producto, "The reponent ip 0 oopany ineceporated tinder the Componter Act In Tndin and alse caries on businentin the manufectare and sale of pharmaceutical products ‘On December 3, 1040 the eppellont applied for registration ofits trade mark “DRODOVITS, ‘The applieatn nie granted and the appeliants masts wes registered in Css V int fapest of “Pharmaceutical prepatstions for Iusnan tse foul for veterinary taey afiuts ad invalids fowds"s ve mppelant thereafter ted that mark on smuli-vitamin preparations iy lid and tablet rs ad ts goods are being sold under that mank st lest since the year 1901, ‘On January 26, 1007 the respondent. applied for registration of its mack “DROPOVIE” in tespect of “medicinal and pharmacesteal preparations. and suibsianges:” The applietion was regstered but the advertisement of the Te ondents appleatin escaped the notice of the appellany who aid ‘not hence Sppose the Fegistrations ‘By a letter dated larch 1008 Messrs Volts Lid, Re appellants agents drew the attention of the appellant to the respondent's mask ™’DROPOVIE",” Tere was neputition between the parties But on March 49,1958 the reondeate woot othe appa retnng to art rade. On Tanuary: 21,7059 tre appellant apphed for nectifietion of the Register by Semoval thereftom ofthe reponcents trade mark, ‘The ground urged suppor Of the application was that the respondents mark so nearly resembled ‘he sppe- Hants mark af to be likey to deceive or cause eonfusion. On March 9, 1900 Me appellant applied for amendnient of the applieation and an additional ground as taken that “DROPOVIT" was sot invented. "word,, The application Toramendment was allowed by the Registrar. ‘The amended applestion was posed by the respontent: By his judgment dated. August 5, 101 the Joint Hapatrar rejected the application for reeitication holding that “DROPOVIT™ trad not decopiively simot co “PROTOVIT" and that the word “DROPOVIT 1 ota) acre, + ani) 3 RS. 13, 2 ee ee 3 fg) RRS ee 5 foes a twee 0 Gm Be Re tes 1989,) F, ROFFMANN-LA ROCHE 9, GEOFFREY MANNERS (8.C:)—Ramasteam a considered as a whole was not descriptive. ‘The appellant took the matter in fppeal to the Bombay High Cont. On December 7, 1062 Mr, Justice Terkunde aed the sppeal, The sppelant prefered an peal unier Lats Patent tbat the appea! was disrissed by ¢ Division Bench consisting of Chief Justice Chainani and Mody J.on August 17, 1964, During the hearing of the appeal the respondent restricted the designation of goods to. “medicinal and pharma: ‘ceutical preparations and substances containing. principally vitamins". ‘The application for reetifietion wasmadeon Janvary 21,1080 before the Trade and Merohandise Marks -Act, 1958 (Act No. 49 of 1958) enme into operation But it ie not disputed that under s. 180 (3) of this Act the decision ofthis eases governed by the provisions of Act No. 49 of 1058 (hereinafter called the Act) Section 11 ofthe Act states: ‘mack (0) the ws of which would be key to deetive orcas confor {the ae of when woud Be contrary to any Iw fr thet Being in free: or (6) waichcomprae or catalan waslows or ebeine matte or {@) ‘whi compris or contains any mater tly to hurt Te rio sashes of Uny clare or toton of the eins of Tad or (0) hich woaldotherrse be dsetited to protection $0 «cour; sail nat be egteed an mrad mat” Section 12 (1) provides “Save as proved in subacton (3), no trade man hall be etre in respect of ay soodn or sesiption of gods which Merial with or Geepively sla to trade ere ‘rsh i already reer in the ar of» iteent proprietor i repack of the sare gods tr deeripton of woods” Section 56 (I) reads : “On application main the prsbed unr tow High Cour ort the Regains by w= pewon ase, the tba ny tae th de oi ay hit for easing or wari Teverintiatio o a tage mark on the grou of any contreventin, cr aie 10 lace 8 tonditon entered on the ester in rtton thereto” Section 2 (1) (d) defines the pharse “deceptively similar as follows =

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