Law: Trade Marks Ordinance (XIX of 2001)

Section: 39

Trade Marks Ordinance (XIX of 2001)---Ss. 39 & 81---Specific Relief Act (I of 1877), S.54---Civil Procedure Code (V of 1908), O.XXX1X, Rr. 1 & 2---High Court appeal---Interim injunction, grant of---Registered trade mark---Prior use and acquiescence---Effect---Similarity in trade mark---"Zanifiex" was the trade mark of the medicine registered in the name of plaintiff but subsequently defendant got its medicine registered against Trade Mark "Zanaflex" and marketed the same---High Court declined to grant interim injunction to plaintiff on the ground that plaintiff approached the Court with delay and that product of defendant had come into the market prior to that of the plaintiff---Validity---Observation of High Court that delay in filing of suit by plaintiff provided sufficient time to defendant to manufacture and sell their drugs in market and to establish their business under the name and style of "Zanaflex" did not hold water as within a few days of the start of manufacturing and marketing activities by defendant, Ministry of Health had directed the defendant to change its name due to its similarity with the name of plaintiff's product, despite such notice, defendant continued to carry on its business activities---Plaintiff being the first to apply for registration of Trade Mark "Zan flex" before Registrar of Trade Marks and also its drug being registered earlier than that of defendant before Ministry of Health, was entitled to the first use of the Trade Mark "Zaniflex"-All three ingredients required for the issuance of an interim injunction under O.XXXIX, Rr. 1 & 2, C.P.C., i.e. presence of prima facie case, balance of convenience and irreparable damages were in favour of plaintiff---Defendant coulI1 not be granted any bonus for its own deliberate persistence in continuing with the use of its trade mark---Division Bench of High Court, in exercise of appellate jurisdiction, set aside the order passed by the single Judge of High Court---Interim injunction was allowed in circumstances. T.G. Balaji Chettar v. Hindustan Lever Ltd. Bombay AIR 1967 Mad. 148; Abdul Aziz v. Seven Up Co. Karachi and another PLD 1978 Kar. 10; Kabushiki Kaisha Toshiba (also…

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