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2007 Supreme(All) 158
IN THE HIGH COURT OF ALLAHABAD
Yatindra Singh, Ran Vijai Singh
CATTLE REMEDIES, ARAON ROAD, SIRSAGANJ, FIROZABAD - Appellant
Versus
LICENSING AUTHORITY/director OF UNANI SERVICES, LUCKNOW - Respondents
Writ Petition 32158 Of 2005
Decided On : 01/18/2007
The main legal principle established is that the grant of licenses for patent or proprietary medicines under the Drugs Act should consider trade mark ownership and patent status to prevent confusion and deception in the market.
Headnote:
Patents and Trade Marks - Intellectual Property Rights - Drugs and Cosmetics Act, 1940 - Section 3(a), 3(h), 33-EEA
Fact of the Case:
The case involves a dispute over the grant of licenses to manufacture Ayurvedic drugs for animals under the Drugs and Cosmetics Act, 1940. The petitioner and the contesting respondent both sought licenses for three disputed drugs under the same names. The court held that the contested drugs were patent or proprietary medicines under the Act and discussed the interplay with trade marks and patents.
Finding of the Court:
The court found that the disputed drugs were patent or proprietary medicines under the Drugs Act. It held that the grant of licenses should consider the trade mark ownership and patent status of the drugs. The court also emphasized the need for distinct trade names to avoid confusion and deception in the market.
Issues: The key issues included the meaning of patent or proprietary medicines, the grant of licenses under the Drugs Act, entitlement to relief, and the impact of earlier litigation on license grants.
Ratio Decidendi: The court's decision was based on the interpretation of the Drugs Act, the interplay with trade marks and patents, and the need for distinct trade names to prevent confusion and deception in the market.
Final Decision: The court quashed previous orders granting permission to sell and manufacture the disputed drugs under the contested names. It directed the parties to seek appropriate remedies based on trade mark ownership and patent status.
( 1 ) THE controversy involved in these two writ petitions revolves around two of the intellectual property rights (IPRs) namely Patents and Trade marks; it also involves their interplay with the Drugs and Cosmetics Act, 1940 (the Drugs Act ). It arises in connection of grant of license to manufacture Ayurvedic drugs for animals.
( 2 ) M/s Cattle Remedies, Araon Road, Sirsaganj, Firozabad (the petitioner) as well as M/s Bio-Herbs Pharma, Chamar Gate, Hathras (the contesting respondents) manufacture Ayurvedic drugs for animals.
( 3 ) THEY have license to manufacture many Ayurvedic drugs but controversy here is in regard to the grant of licence for the following three Ayurvedic drugs (the disputed drugs) for the animals that both of them have given same name. They are:
(i)Catone: It is a powder. It is for cleaning stomach and improving digestion; (ii)Catcough: It is a paste. It is for cough and cold; (iii)Uterotone:it is a syrup. It is for facilitating reproduction and problems relating to it. These names are being referred to as the disputed names in this judgment.
( 4 ) THE petitioners firm was first one to start and sometimes in 1971, the partners of the contesting respondents were inducted in the petitioners firm. However, it was dissolved in the year 1981 and the petitioners firm was reconstituted. The firm of the contesting respondent was also formed at that time. Both of them started manufacturing Ayurvedic drugs for animals.
( 5 ) THE petitioner applied for and was granted licences to manufacture the disputed drugs under the Drugs Act on 13. 12. 1984. It appears that the contesting respondent did not have any licence under the Drugs Act to manufacture the disputed drugs and some prosecution was being launched against it. The contesting respondent filed writ petition no. 41152 of 1992 for declaration that it is a deemed licensee for the disputed drugs under the Drugs Act. During pendency of this writ petition, two separate orders were passed:
(i)The contesting respondent was granted licences under the Act to manufacture the disputed drugs. However, it was subject to decision in writ petition no. 41152 of 1992; (ii)The petitioners licences for the disputed drugs were cancelled. The petitioner filed writ petition no. 7230 of 1995 against these two orders.
( 6 ) THESE two writ petitions were decided together on 27. 11. 2000. The court held that:
(i)There is no deemed licence in favour of the contesting respondent and the application of the contesting respondent for grant of licence should be considered in accordance with law. (ii)The order dated 10. 3. 1995 cancelling the licence of the petitioner was quashed and authorities were directed to pass a fresh orders after affording opportunity to the petitioner.
( 7 ) THE licensing authority by its order dated 22. 2. 2001 upheld the licence of the petitioner and rejected the application of the contesting respondent. Nevertheless, the licensing authority also observed that the contesting respondent is permitted to sell the quantity of the disputed drugs already manufactured. The petitioner filed writ petition no. 8746 of 2001 against this part of the order. In this writ petition, an interim order was obtained by the petitioner restraining the contesting respondent from selling the disputed drugs in terms of the order dated 22. 2. 2001.
( 8 ) THE contesting respondent filed an appeal against the order dated 22. 2. 2001. It was dismissed by the State Government on 31. 1. 2002. The contesting respondent filed writ petition no. 11986 of 2002 against this orders. It was also dismissed on 21. 3. 2002. The contesting respondent filed special leave petition (SLP) no. 11833 of 2002 against it. However, it was withdrawn on 24. 3. 2003 with liberty to seek appropriate remedy from the competent authorities. Subsequently, the licensing authority granted licence to the contesting respondent to manufacture the disputed drugs on 10. 2. 2005. The petitioner has filed writ petition
