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
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.
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