Court : Mumbai
Reported in : AIR1959Bom21; (1957)59BOMLR1019
..... act runs as under:'65. where by this act any act has to be done by or to any person in connection with a trade mark or proposed trade mark or any procedure relating there to, the act may under and in accordance with the rules, or in particular cases by special leave of the ..... in his affidavit in reply has taken the contention that no appeal lies from the decision actually given by the deputy registrar of trade marks under the provisions of section 76 of the trade marks act, 1940. that point has, however, not been pressed before me by mr. sava ksha.11. in may view the ..... legislature and the enactment of the central legislature, the enactment of the central legislature should prevail. in that event, the provisions of section 80 of the trade marks act, 1940 would prevail over the provisions of section 9 of the bombay pleaders, act. mr. vaidya, however says that would not be the result ..... act. in answer to that plea, it was pointed out that the bombay pleaders act, 1920, is an act of the provincial legislature and that the trade marks act, 1940, is an act of the central legislature. both these acts were passed before the constitution came into force. item 16 of the concurrent ..... sense be considered to be civil proceedings in any court. the registrar can in no sense be regarded as a court. section 70(a) of the trade marks act provides that the registrar shall have all the powers of a civil court for the purposes of receiving evidence, administering oaths, enforcing the attendance of .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1992Bom35; 1992(2)BomCR298
..... decided by this court on march 15, 1989, (lentin and mehta jj). in that case the appellants sought an injunction to restrain the respondents from using the trade mark 'slimex'. the appellant's trade mark is 'slimerax'. the appellants' products consisted of tablets used for the purpose of reducing obesity. the respondents' product is a homeopathic medicine which is available in liquid ..... absence of an intention to deceive is not a defence. in this respect mr. tulzapurkar has relied upon para 16-16 at page 357 of rerly's law of trade marks and trade names (12th edition), which reads as under:--'passing-off cases are often cases of deliberate and intentional misrepresentation, but it is well settled that fraud is not a ..... registration of the trade mark 'betaloc' under the trade and merchandise marks act, 1958, (hereinafter referred to as 'the said act'), and its long, extensive and continuous use and reputation, the plaintiff has acquired proprietary rights in the ..... duly incorporated and registered under the provisions of the companies act, 1956, is carrying on business of manufacture and sale of pharmaceutical and medicinal products. the plaintiff is proprietor of trade mark 'betaloc' which is registered under no. 326230 dated june 16, 1977, in class 5 in respect of the pharmaceuticals preparation. according to the plaintiff, by virtue of .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1958Bom47; (1957)59BOMLR539; ILR1957Bom564
..... an application for registration is made and duly advertised, it is open to the registrar at any time to amend that application so as to substitute even a different trade mark from the trade mark which was sought to be registered by the original application and which application had been advertised. if that were to be the correct interpretation of sub-section (3) ..... continue and if any alteration has to be made it must be an insignificant alteration or a superficial alteration but not an alteration altering the identity of the trade mark itself, because if the trade mark was to be altered substantially then a fresh application would have to be made, it would have to be advertised, opposition invited, and so on. similarly, under ..... gave notice to the appellants of this application far amendment and the appellants replied on the 8th september 1953, stating that they did not admit that the amended trade mark was dissimilar to their own trade mark and stating that they wanted to proceed with the opposition. at the hearing of the opposition the appellants were not present, their application for adjournment having been ..... between these two parties and on the strength of that compromise the application for amendment was made, and notwithstanding the appellants having agreed to the first respondent using this amended trade mark they opposed it before the registrar and also in appeal before mr. justice coyajee. therefore, if the appellants want to render a service to the public they should do .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1958Bom56; (1957)59BOMLR548; ILR1957Bom702
..... is not open to a party to challenge that registration under section 46 on the ground that there was a prior trade mark resembling the trade mark challenged if in fact there was no trade mark registered prior to the date o| the application. in our opinion, this contention is not tenable. section 16(1 ..... the applicant, the registrar shall, unless the application has been accepted in error, or unless the central government otherwise directs, register the said trade mark, and the trade mark, when registered, shall be registered as of the date of the making of the said application, and that date shall, subject to any ..... has delayed in coming to court and i have a large stake in the sales which i am effecting by reason of using a trade mark which resembles the trade mark of another.' therefore, the argument put forward by mr. shah of balance of convenience, of hardship, of equity, has no application ..... reference to them. to this the respondents replied on the 24th december 1945 informing the appellants that they had applied for registration of the trade mark 'cibol'. now, the cibol label was advertised on the 1st november 1947 and the time for putting in an opposition under the rules is ..... the court whether there is likelihood of deception. the court cannot abdicate its own function which is to decide on looking at the two trade marks and on considering them phonetically whether they resemble each other and whether there is likelihood of deception. that function cannot be discharged by a .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1991Bom111; 1990(3)BomCR452
..... of cosmetics and toilet preparations. the petitioner no. 1 company are generally known as colgate-palmolive and the products are sold under various trade marks, word marks, label marks and as well as device marks which have been registered as trade marks in several countries of the world including india. the petitioner no. 1 company till the year 1949 were exporting to india colgate ..... a person who is for the time being registered as such under s. 49 and expression 'permitted use' in relation to a registered trade mark means the use of the trade mark by a registered user of the trade mark in relation to goods for which he is registered as registered user. s.48, inter-alia, prescribes that the person other than the ..... application for registration shall not be entertained unless the agreement between the proprietor and the registered user complies with the conditions laid down in the rules for preventing trafficking in trade marks. it is, therefore, obvious that while examining whether the registrationwould affect the interest of general public, the central government must restrict the enquiry to the effect on ..... of indigenous industry' are not the magic words and the central government must support the conclusion by requisite material. it must be remembered that petitioner no. 2 are users of trade marks 'colgate' and 'palmolive' for last over several years. initially, the products manufactured by petitioner no. 1 were imported in this country and subsequently, petitioner no. 2 are .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1963Bom246; (1962)64BOMLR616
..... an application for rectification of the register. they, however, do indicate the circumstances in which the court suo motu would order expungemet of an entry from the register of trade marks namely, where a trade mark, as already stated, was incapable, in its very nature, of registration under the act, or where the registration has been illegal or improper. in no other case would ..... not eventually be found to be such person, e.g. by his conduct, as in this case, in withdrawing his opposition to the application for registration of a trade mark and thereby allowing the trade mark to be registered without any objection from him. reference in this connection may be made to in the matter of actomin products ltd. (1952) 69 r.p.c ..... the said act and then proceeded to observe as follows :'broadly, the case of the appellants is that the trade mark 'cibol' so closely resembles their trade mark 'ciha' and that their trade mark 'ciba' was already on the register on august 24, 1946, and therefore, the trade mark of the respondents, should not have been registered on november 3, 1949. the appellants had also sought to bring ..... . birmingham vinegar brewery co., (1894) ac 8. it is as follows :'wherever it can be shown, as here, that the applicant is in the. same trade as the person who has registered 'the trade mark, and wherever the trade mark if remaining on the register, would or might limit the legal rights of the applicant, so that by reason of the existence of the entry .....Tag this Judgment!
Court : Mumbai
Reported in : AIR2008Bom100; 2008(2)ALLMR405; 2008(2)BomCR739; (2008)110BOMLR409; LC2008(1)275; 2008(36)PTC478(Bom)
..... defendant a valid defence in an action for infringement and passing off. the decided cases furnish other instances. among them is a judgment of the delhi high court where a trade mark of a medicinal preparation (nimulid) is wholly derived from the principal drug used in its manufacture (nimesulide). (panacea biotec ltd. v. recon ltd. : air1997delhi244 . griffon laboratories (p) ..... matters of infringement and passing off involving pharmaceutical products in cadila: at paragraph 32 page 1964public interest would support lesser degree of proof showing confusing similarity in the case of trade mark in respect of medicinal product as against other nonmedicinal product. drugs are poisons, not sweets. confusion between medical products may, therefore, be life threatening, not merely inconvenient. ..... appellate judges based themselves in arriving at the conclusion that there was no reasonable apprehension of confusion or deception was, as we have earlier stated, that there were various trade marks with a prefix or suffix 'gluco'or 'vita'and that made it impossible to say that the common features 'glu' and 'vita' were only associated with the ..... are meant for curing the same ailment but the compositions are different;(iii) there is no phonetic or structural similarity between the two marks. under section 30(2)(a) of the trade mark act, 1999, a registered trade mark is not infringed where the use in relation to goods or services indicates inter alia the kind, quality, intended purpose or other .....Tag this Judgment!
Court : Mumbai
Reported in : AIR1956Bom76; (1955)57BOMLR1006; ILR1955Bom976
..... extent of the user by the applicant in that case was extremely material. there was a further fact also that the applicant had used the expression 'regd.' after his trade mark without the trade mark being registered and in doing so he committed an offence and was liable to be prosecuted. he then tried to conceal the fact that he had used the word ..... the matter being again remanded to the registrar and for the registrar to consider whether in view of this principle (sic) should completely disentitle the applicant from registration of his trade mark.in our opinion, therefore, the only question that should have been considered by the learned judge on the appeal preferred before him by the respondent was whether the agreement which ..... view that the registrar had decided mainly on the question of the genuineness of the agreement. according to the learned judge what the registrar should have considered was whether the trade mark was likely to deceive or cause confusion.that was the only circumstance the registrar should have taken into consideration and therefore the learned judge thought that the registrar should reconsider ..... user that he had a right to registration in eight districts, and the registrar expressed his opinion that if the agreement was not held proved, he would have registered the trade mark in respect of the eight districts.against this decision the respondent went in appeal to tendolkar, i. & the appellant filed cross-objections and tendolkar, j. remanded the matter backto .....Tag this Judgment!
Court : Mumbai
Reported in : 2002(4)BomCR431; 2002(3)MhLJ744
..... have proved its prima facie case inthis regard. moreover, the principle of balance ofconvenience also tilts in favour of the plaintiff.the defendants have adopted the trade mark and thattoo with the full knowledge of the plaintiffs trademark. in infringement action the question ofbalance of convenience cannot outweigh thesafeguards required to be provided by grantinginjunction ..... court isprima facie satisfied that the plaintiffsregistration of the trade mark is prima facieinvalid, no injunction should be granted. i maynote that, in this regard it is settled legalposition so far as this court is concerned to ..... theapplication for interim relief, the court is boundto take into consideration the pendency of theapplication for rectification. secondly, in view ofsections 28 and 111 of the trade marks act, thecourt is not debarred from granting interim reliefswhich necessarily mentions that the court must takeinto consideration the merits of the defendantsapplication for rectification and if the ..... various contentions supported by variousrulings which i have carefully gone through. it ispointed out on behalf of the defendants that theapplication for rectification made by them againstthe trade mark of the plaintiffs is pending and,therefore, no inter-locutory order by way ofinjunction may be passed or in the alternative suitmay be stayed pending the application .....Tag this Judgment!
Court : Mumbai
Reported in : 2005(3)BomCR901
..... of such product is common, there is more possibility of deception and confusion and infringer's action, definitely cause damage to the goodwill and the reputation of their trade mark of parties like respondents herein,'(underlining supplied)8. learned counsel for the plaintiffs submits that in the decision of sun pharmaceuticals industries limited the division bench of this ..... the relief of an injunction.3. learned counsel for the plaintiffs submits that the name 'netmicin' used by the defendants for their product is deceptively similar to the trade mark of the plaintiffs. the similarity is both phonetic as well as visual. there is a probability of confusion of the consumers. learned counsel for the plaintiffs refers and ..... started manufacturing, selling and distributing the identical medicinal product 'netilmicin suphate' in ingestible form under the brand name 'netmicin'. on being aware of the defendants' infringement of their trade mark and passing off of their goods (medicinal product) the plaintiffs after issuing a notice dated august 2, 2004 through their solicitors have filed this suit and moved this court ..... sulphate' in injectable form under the brand name 'netromycin'. the plaintiff no, 1 has also registered as a trade mark the word mark 'netromycin' in class 5 of iv schedule to the trade marks rules. the plaintiffs' product is sold under the trade mark 'netromycin' in ampules and is used as an ingestible antibiotic. the plaintiffs have sales of several crores of rupees .....Tag this Judgment!