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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE K. SAMPATH
Robapharma Ag, S. Alban - Appellant
Versus
T.T.K. Pharma Limited - Respondents
Application No.2449 of 1994 In C.S. No.1148 of 1993
Decided On : 24 June 1997
TRADEMARK - AMENDMENT OF PLAINT - SUBSTITUTION OF DESCRIPTION OF GOODS - CONDITIONS - POWER OF COURT - LIMITATION ACT, 1963, ARTICLE 88 - TRADE AND MERCHANDISE MARKS ACT, 1958, SECTIONS 29, 78, 79 - CIVIL PROCEDURE CODE, 1908, ORDER 6 RULE 17.
Fact of the Case:
Plaintiff, a foreign corporation, sought to amend the description of goods in its plaint for infringement of trademark. The original description was wide and included goods not covered by the plaintiff's trademark registration. The defendant opposed the amendment, arguing that it would introduce a new cause of action and that the suit would be barred by limitation. The plaintiff contended that the amendment was necessary to correct a bona fide mistake and that it would not prejudice the defendant.
Finding of the Court:
The court held that the amendment was permissible under Order 6 Rule 17 of the Civil Procedure Code, 1908. The court found that the plaintiff had made a bona fide mistake in drafting the original plaint and that the amendment would not introduce a new cause of action or prejudice the defendant. The court also held that the suit was not barred by limitation, as the amendment was filed within the limitation period.
Issues: 1. Whether the amendment of the plaint was permissible under Order 6 Rule 17 of the Civil Procedure Code, 1908? 2. Whether the amendment would introduce a new cause of action or prejudice the defendant? 3. Whether the suit was barred by limitation?
Ratio Decidendi: 1. The court held that the amendment was permissible under Order 6 Rule 17 of the Civil Procedure Code, 1908, as it was necessary to correct a bona fide mistake and would not prejudice the defendant. 2. The court found that the amendment would not introduce a new cause of action or prejudice the defendant, as the description of goods in the amended plaint was narrower than that in the original plaint. 3. The court held that the suit was not barred by limitation, as the amendment was filed within the limitation period.
Final Decision: The court allowed the plaintiff's application to amend the plaint. The plaintiff was directed to pay costs of Rs. 10,000/- to the defendant.
K. Sampath. J.
1. This is an application for permission to amend para - 27(a) of the plaint, by substituting the description of the goods therein by the following description of goods as found in User Certificate of Trade Mark No. 129304 :-
"Organo-therapeutic preparation consisting of or containing osseous material of young animals."
The description already there is" Pharmaceutical, veterinary and sanitary substances, children's and invalids' foods ; plasters materials for bandaging; material for staffing tooth, dental wax, disinfectant, preparations for killing weeds and disharming vermin".
2. The affidavit filed in support of the application is sworn to by one Rajendra kumar, advocate and legal consultant in the firm of Remfry and Sagar Trade Mark Attorneys.
3. The allegations in the affidavit are as follows:-
(a) The firm of Remfry and Sagar handles a large number of trade marks renewals and other legal occurrences with respect to trade marks of their clients. The details of all these trade marks are entered in the computer, as well as manually operated cards. The firm came to be entrusted with the trade mark "OSSOPAN" of the plaintiff-Company registered under 129304 in Class-5 since 1983. The trade mark was registered with effect from 13.05.1947. With respect to this trade mark, the plaintiff-Company had discussions and disputes with the defendants-Company since 1986. This resulted in the plaintiff-Company issuing "Cease and Desist" notice to the defendant-Company. The defendant-Company filed a suit under section 120 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) against the plaintiff-Company, a petition for rectification of the registered trade mark and an application for the registration of the trade mark claiming proprietorship. In pursuance of this, the plaintiff-Company instructed Remfry and Sagar to initiate legal proceedings in Madras against the defendant-Company. The plaintiff-Company sent a power of attorney made in favour of a number of legal consultants in Remfry and Sagar, in January, 1992. As the suit had to be filed in Madras, Mr. C. Daniel, advocate was handed over the papers and instructions were given to him. At that time, the plaintiff-Company were not in possession of the legal user certificate for trade mark No.129304 "OSSOPAN". In its absence, a photocopy of the manually operated card containing particulars of the goods comprised in the said application was sent to Mr. C. Daniel. Mr. C. Daniel verified this to be correct, on obtaining photocopy of the journal dated 1.10.1948 from Madras Trade Mark office, containing the publication of the application of the plaintiff-Company for registration of "OSSOPAN" in 1947. At the same time, the deponent instructed plaintiff's Bombay office to apply for a user certificate from the Trade Mark Registry, Bombay. The particulars of the goods for which the application had been made by the plaintiff-Company in 1947 were as follows.
"Pharmaceutical, veterinary and sanitary substances, children's and invalids' foods; plasters, material for bandaging; material for staffing tooth, dental wax, disinfectants, preparation for killing weeds and disharming vermin" *
. On this basis, Mr. C. Daniel prepared a plaint and sent it to the deponent's firm Remfry and Sagar for approval. They approved the same and the deponent signed the plaint on the above basis.
(b) On 3.8.93, the deponent was able to get user certificate issued by the Bombay Trade Mark office on 28.7.93. This user certificate was sent to Mr. Daniel on 5.8.93. The suit was filed by him alongwith the user certificate. The prayer for injunction in the suit was with respect to the goods as furnished by the deponent and as per journal entry of 1949.
(c) It was now discovered that the particulars of the goods, as contained in the user certificate were as hereunder :
"Organs-therapeutic preparations consisting of or containing osseous material of young animals." *
This was overlooked
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