2008 (2) AIR Bom R 788 ::2008 A I H C 1968 ::2008 CLC 819 (BOM)

Bombay High Court

Hon'ble Judge(s): D. Y. Chandrachud , J

(A) Trade Marks Act (47 of 1999) , S.29— Registered trade mark - Infringement - Medicinal and pharmaceutical preparations of plaintiff falling in Class 5 - Supreme Court in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. case reported in AIR 2001 SC 1952 emphasized need of a Stricter Standard in matters of Infringement and passing off involving pharmaceutical products - Plea of defendant that observations of Supreme Court in 'Cadila' must be confined to cases where competing marks are used in drags with different compositions - Not acceptable - Judgment of Supreme Court has to be read in its entirety - Width and @page-Bom101ambit of test laid down by Supreme Court cannot be restricted by artificial process of construction - It would be inappropriate for Court to apply a stricter standard only to a particular class of medicinal preparations - Whether competing drugs are meant to cure same ailment but compositions are different, mistaking one for the other may result in deleterious consequences - But lower standard of scrating would not be justified merely because two competing marks are used for drugs with same composition - Judgment in 'Cadila' cannot be read down. In the instant case plaintiffs were entitled to use and adopt mark FOLVITE in proprietary character in respect of their medicinal and pharmaceutical preparations falling in C....