India: Deceptive Similarity Revisited In Denial Of Relief To Bal Pharma

Last Updated: 6 January 2010
Article by Shalini M.

In Law, any party aggrieved by the lower court decision may further appeal or approach high court for review. The high court can scrutinize the order passed by the lower court in which no appeal lays and where the arbitrariness of lower court is shown on the face of the dispute. In an attempt to assert ones right in trademark, as envisaged under section 115 of Civil Procedure Code, the recent case of Bal Pharma Ltd v. Glenmark Pharmaceutical Ltd. (2009(41) PTC127 (Mad) witnessed the Madras High court dismissal of a revision petition seeking review of relief granted by Appellate Board. The present suit was brought before the court in respect of alleged infringement caused to the rights of Appellant, Bal Pharma Ltd, a Pharmaceutical claiming exclusive right over the word 'Candizole' for its products. In this view, Bal Pharma Ltd dissatisfied and aggrieved with the order passed by Appellate Board in favour of Respondents, Glenmark Pharmaceutical Ltd had approached the High Court.

Glenmark Pharmaceutical Ltd in the plaint before Appellate Board had erred that they were the proprietor of the trade mark 'Candid' for the last three decades in niche segments like dermatology, diabetes, internal medicines, pediatrics, gynecology and ENT. By virtue of high standards of quality, they had gained extensive publicity thus claimed to be the proprietor of trade mark in a series of mark containing the word 'Candid'. Further contented that the rival marks 'Candid' and 'Candizole' more or less were same and would confuse the mass since they were deceptively similar. An inspection of the rival marks clearly exhibited that the words were not only phonetically but also structurally corresponding. Glenmark Pharmaceutical Ltd had been using different trade marks like Candid, Candidern, Canditral and the use of the trade mark 'Candizole' by Bal Pharma Ltd was likely to cause confusion.

Bal Pharma Ltd contented that they had honestly adopted the trade mark holding that the rival marks were wide apart. Adoption of the trade mark 'Candizole' is honest and bonafide and was adopted without any reference to existing trade mark. And further erred that prefix 'Candid' being common for similar products Glenmark Pharmaceutical Ltd can not claim exclusive right over the word.

In respect of this case, the Appellate Board had earlier ordered the Deputy Registrar not to issue certificate of registration for the word 'Candizole' till the disposal of the case on the ground that two marks would confuse a man of average intelligence. When the marks considered were likely to cause confusion, the registration should be refused. Unhappy with the judgment Bal Pharma Ltd approached High court of Madras. However court on comparison of claims confirmed that no merit was in the revision petition. Thus the revision petition was dismissed without cost and directed the Appellate Board to dispose of the case within a period of two months.

© Lex Orbis 2009

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