Macleods Pharmaceuticals Limited Vs Union of India and Others

Judgment date: 15.02.2023
Case No: Writ Petition No. 1517 of 2022
Neutral Citation No.
Name of Court: High Court of Judicature at Mumbai
Name of Hon'ble Justice: S.V. Gangapurwala and Madhav V Jamdar HJ
Case Title: Macleods Pharmaceuticals Limited Vs Union of India and Others

The Party: Petitioner namely Macleods Pharma was the registered Proprietor of Trademark OFLOMAC under No.838726 in class 05, while Respondent No.4 namely Sun Pharma is the party who has filed rectification Petition before Intellectual Property Appellate Board bearing ORA/66/2014/ TM/MUM seeking cancellation of Petitioner's afore mentioned registered Trademark.

The Judgement Assailed:
The Subject Matter Writ Petition was filed against impugned Judgement dated 15.02.2023 of IPAB where by registered Trademark of the Petitioner namely OFLOMAC was cancelled at the behest of cancellation Petition filed by the Respondent No.4 claiming to be prior registered proprietor and prior user of the Trademark OFRAMAX.

The Relevant Registration of Parties:
Petitioner's Registered Trademark: OFLOMAC under No.838726 in class 05 is dated 28.01.1999.

Registration of Respondent No.4: OFRAMAX in class 05 dated 30.08.1989.

Trade Mark was cancelled on the ground of deceptive similarity.

The Judgement of Hon'ble Division Bench:

The Hon'ble Division Bench, High Court of Judicature at Mumbai was pleased to reject the subject matter Writ Petition. While doing so, few important observation made by the Hon'ble Division Bench are as follows:

1. Even Doctors are not immune to confusion.

2.While Comparing two trade marks, the test of English People would not apply in India as unlike English People, in India , there are various languages and people in India are not that much educated as In England.

3.The Point of similarities of trademarks has to be weighed with respect to man of average intelligence having imperfect recollection.

4.While dealing with medicinal preparation, the test is not that doctors who prescribed medicine, but the test is the patients who are going to purchase the medicine.

5. Confusion and deception may also occur in relation to prescription drug.

6.The decisions given in interlocutory applications do not decide cases conclusively.Hence tha same is not binding.

7.Limitation Act is not applicable to the cancellation petitions.

8.The substance of Application has to be seen and not the provisions mentioned therein. Though Section 151 CPC was mentioned in the Application, however it was in fact meant to be application under Section 124 of Trade Marks Act 1999.

9.The cancellation Petition was filed prior to filing of Application under Section 124 of TM Act. The Rectification Petition was still held to be maintainable.

10.Under Section 124 of Trade Marks Act, only prima facie tenability of issue of invalidity has to be seen.

11. In writ jurisdiction , jurisdiction of court is very limited. It interferes with the order assailed, where it can be seen that there has improper excercise of jurisdiction by the lower authority.


DISCLAIMER:
This information is being shared in the public interest. It should not be treated as a substitute for legal advice as there may be possibility of error in perception, presentation and interpretation of facts and the law involved therein.

Ajay Amitabh Suman
Patent and Trademark Attorney
Hon'ble High Court of Delhi.
Email: ajayamitabh7@gmail.com,
Ph No: 9990389539