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Gujarat High Court
Judgename :D.P.Buch
CADILA HEALTHCARE LIMITED - Appellant
Versus
SWISS PHARMA PRIVATE LIMITED - Respondent
First Appeal 2155 of 2000
Decided On : 08/17/2001
Civil Application – Appellant contended before trial court that appellant had started production marketing and sale of its product and had applied for registration of said trade mark vide application dated provisions of Clause of Trade and Marks Act, 1958 – Appellant started manufacturing and marketing said product SPARDAC a preparation of drug Super is a potent anti-bacterial medicine used to prevent bacterial infections respiratory tract infections urinary tract infections – Appellant adopted trade mark SPARDAC for first time in trade industry adopting mark in connection with drug spar and adopted mark from word indicates name ALIDAC Genetics and Pharmaceuticals is a division of original company CADILA – Considered is medicine named manufactured marketed and sold by respondents could be treated to be containing a mark deceptively similar to mark SPARDAC which is a medicine manufactured marketed and sold by appellant above named and that there is a likelihood of creation of confusion in trade on account of alleged similarity in names of two products – It is not much in dispute that aforesaid names of medicines have not been registered as trade mark is of passing off and there is no question of infringement of trade mark – This fact is absolutely undisputed during course of argument advanced by learned Advocates for parties – Held, Attempt was made to argue that many customers may be ignorant and some of them may not be even literate and they are likely to commit error and would name one instead of another – It is difficult to swallow this argument – Such a customer may not be expected to wrongly name one medicine in place of another – Ignorant and illiterate customer would hardly go to purchase such a drug without a prescription – It is not possible to accept that such a customer would even remember names of these two medicines – Even name of one medicine may not be remembered by such a customer – In other words it is not likely that such an ignorant or illiterate customer may commit an error in naming a particular medicine of his requirement –Trial Court seems to be right in recording a finding that two products are not visually structurally or phonetically identical and they are not deceptively similar so as to confuse the users, doctors or chemists – This Court is in general agreement with findings of trial court necessary to go into detailed discussion – Civil Appeal hence it is a final court of fact – Learned Advocates for parties – Court have dealt with issues raised by learned Advocates for both sides in possible brief manner – Trial court is not shown to have committed any error on fact or law – Application is dismissed.
( 1 ) WHETHER "superdac" medicine manufactured, marketed and sold by the respondent herein contains a mark which is deceptively similar or identical with the mark "spardac", a product of the appellant, is a question at controversy between the parties in this First Appeal.
( 2 ) THE appellant above named has preferred this First Appeal under section 96 of the Civil Procedure Code, 1908 (for short, the Code) against the judgment and decree dated 25. 8. 2000 recorded by the learned Judge of the City Civil Court at Ahmedabad, in Civil Suit No. 4754/98 under which the learned trial Judge dismissed the suit of the appellant-original plaintiff and further directed the appellant-original plaintiff to pay to both the respondents herein cost of the suit and to bear their own costs in the suit.
( 3 ) THE main grievance of the appellant before the trial court was that the appellant had already marketed a medicine named SPARDAC somewhat over a year before the institution of the suit. The appellant also contended before the trial court that the respondents have been manufacturing , marketing and selling a medicine named SUPERDAC and the said process has been started little before the institution of the suit. The appellant contended before the trial court that the mark SUPERDAC is deceptively and/or confusingly similar to the appellants trade mark SPARDAC and thereby, the respondents have committed an act of passing off their product SUPERDAC as the appellants product SPARDAC.
( 4 ) THE appellant contended before the trial court that initially CADILA was a common name for the appellant as well as the second respondent. There was a partition and therefore, the appellant continued its production, marketing and sale of medicine in the name of appellant, whereas, the second respondent started its manufacturing, marketing and sale of medicine in the name of Cadila Pharmaceuticals Ltd. Both of them are the Companies registered under the Companies Act, 1956.
( 5 ) THE appellant contended before the trial court that the appellant had started production, marketing and sale of its product SPARDAC and had applied for registration of the said trade mark vide application dated 31. 5. 1996 under the provisions of Clause 5 part-A of the Trade and Merchandies Marks Act, 1958. (for short, the Act ). That thereafter, in November, 1996, the appellant started manufacturing and marketing the said product SPARDAC, a preparation of drug Super-floxacin, which is a potent anti-bacterial medicine used to prevent bacterial infections viz; respiratory tract infections, urinary tract infections, etc. That the appellant adopted the trade mark SPARDAC for the first time in the trade industry adopting the mark "spar" in connection with drug spar floxacin and adopted mark "dac" from the word "alidac" which indicates the name ALIDAC Genetics and Pharmaceuticals which is a division of the original company CADILA.
( 6 ) THE appellant also contended that the respondents have recently started manufacturing a medicine named SUPERDAC. That the said name is deceptively similar and identical with the medicine SPARDAC manufactured by the appellant. That the people at large would naturally be put to a confusion on account of the similarity appearing in the names of these two medicines. Therefore, the appellant filed the aforesaid suit to restrain, the respondents from passing off their goods as appellants goods.
( 7 ) THE respondents were duly served and they appeared and filed written statements. The first respondent filed written statement at Exh. 36 and the second respondent at exh. 35. There the facts were not much in dispute but it was mainly contended by the respondents that the medicine and its mark SUPERDAC is not deceptively similar or identical with the medicine and its name SPARDAC of the appellant. It is further contended that even looking at the face of the two medicines and their packings, it is not likely that people at large, would be confused by the alle
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