IMPORTANT POINTS
Perversity can pertain to understanding of law or appreciation of pleadings or evidence. Conclusion reached by the subordinate court, if reasonable, should not be interfered.
The law enunciated by other High Court be given due deference. It is more so when litigants are same and issues are also same. In such cases sections 10 and 11 would come into play.
First user of a trade mark would be entitled to injunction against competition even if the opponent had registered its mark earlier but not used it for long time.
Non-user of registered trade mark for more than five years amounts tom its abandonment.

JUDGMENT

VIKRAMAJIT SEN, J.

1 This Appeal assails the Judgment dated 19.12.2005 of the Learned Single Judge of the High Court of Gujarat at Ahmedabad, who returned the opinion that the Trial Court had rightly granted an injunction in favour of the Plaintiffs (Respondents before us) till the disposal of the suit.

2 Briefly stated, the Plaintiff-Respondents 1 & 2 had filed a suit for injunction, damages and account of profits. The Plaintiff-Respondents are engaged in the business of manufacture and marketing of pharmaceutical products and medicinal preparation, and as pleaded by them, have acquired high reputation and goodwill in the market. Hematal Biologicals Ltd. or Core Health Care Ltd., the predecessor-in-title of Plaintiff-Respondents is stated to have introduced the molecular preparation and generic drug “Propofol” in India, in respect of which an application had been filed before the Drug Controller of India on 22.4.1998. Product Permission was received on 2.5.1998 from the Commissioner of Food and Drugs Control Administration. It has been pleaded that the predecessor-in-title of Plaintiff-Respondent No.1 had coined and invented the trademark PROFOL in April 1998 and not applied for registration of the said trademark on 24.5.1998 in Class V. However, it seems to us that this claim may not find acceptance inasmuch as PROFOL is almost an anagram of and is phonetically almost indistinguishable from the molecular compound, namely “Propofol”. In our opinion, to claim exclusivity of user, the trademark should normally partake of a new creation, or if an existing word, it should not bear descriptive characteristics so far as the product is concerned, nor should it be of an extolment or laudation. It would be surprising if exclusivity is given to marks such as ‘bestsoap’ etc. Having said this, we must accept the reality that in the pharmaceutical industry it is commonplace that trademarks reproduce and resonate the constituent composition. While this aspect and feature may be a good ground for declining registration of the trademark, it may nevertheless remain a favourable determinant in a passing-off action. So far as the subject trademarks are concerned, not only do their names constitute part of the generic drug “Propofol”, but they are also so similar that even the concerned medical practitioner/anaesthesiologist could fail to discern the difference between them.

It has been pleaded in the plaint that the said predecessor-in-title has been openly employing this mark since April 1998. After amalgamating with its predecessor-in-title on 17.2.2000, Plaintiff-Respondent No. 1 became the owner of the trademark PROFOL, and has been using it since 2000, when it also applied for its registration. Plaintiff-Respondent No. 2 is a licensee of Plaintiff-Respondent No. 1. On coming to learn that Defendant No. 1, the Appellant before us, had introduced into market the same generic drug under the trademark ROFOL, the Plaintiff-Respondents filed the present suit on 17.7.2005, on the predication that ROFOL is identical and deceptively similar to the Plaintiff-Respondents’ trademark PROFOL. As is to be expected, the assertion in the plaint is that the Defendant-Appellant is marketing and passing off its products as that of the Plaintiff-Respondents.

3. This Court does not normally entertain appeals against interlocutory orders. In the case of trademarks, however, keeping in perspective the endemic delay in concluding cases/suits in India because of the exponentially increasing docket explosion, temporary ad interim injunctions are of far reaching consequences, oftentimes effectively deciding the lis and the disputes themselves. Possibly for this reason ‘Leave’ has already been granted in the present Appeal. However, it is now well entrenched in our jurisprudence that the Appellate Court should not flimsily, whimsically or lightly interfere in the exercise of discretion by a subordinate court unless such exercise is palpably perverse. Perversi