1.00. Present Appeal From Order under Order 43 Rule 1(r) of the Code of Civil Procedure has been preferred by the appellant - original plaintiff challenging the impugned order dtd.3/7/2008 passed by the learned Additional District Judge and Presiding Officer, FTC No.7, Ahmedabad (Rural) at Mirzapur below below application Ex.5, by which the learned Judge has rejected the said application Ex.5 refusing to grant injunction in favour of the plaintiff as prayed for with respect to pharmaceutical product "ATTOR" of the defendant.
1.01. The appellant herein - original plaintiff has instituted Civil Suit No.9 of 2005 in the court of learned District Judge at Ahmedabad (Rural) for perpetual injunction against the respondent herein - original defendant, his agents, servants, stockist, or others directly or indirectly involved, from in any manner using in relation to any medicinal or pharmaceutical preparation, in manufacturing or marketing the pharmaceutical product bearing the trademark "ATTOR" or any other trademark which is deceptively and/or confusingly to the plaintiff's trademark "ATORVA" and thereby restrain the defendant from committing an act of passing off by the defendant by using the trade mark "ATTOR" for the well reputed trade mark "ATORVA" of the plaintiff. The plaintiff has also prayed for damages from the defendant for using illegal trademark "ATORVA" of the plaintiff.
1.02. It is the case on behalf of the plaintiff that in the year 1999 the plaintiff Company developed a formulation of drug "Atrovastatin" used for the treatment of reducing cholesterol level in the patient. The plaintiff Company coined and invented a distinctive trademark "ATORVA" for the said produce and applied for registration. That thereafter, after obtaining manufacturing permission the plaintiff Company started manufacturing and selling product under the trademark "ATORVA" from January, 2000. It was the case on behalf of the plaintiff that immediately upon launch, the product - "ATORVA" achieved high reputation and goodwill among doctors, pharmacists and patients. It was further averred by the plaintiff in the suit that they have recently received information about the defendant's product of Atrovastatin being sold under the trademark "ATTOR" which is deceptively, confusingly, phonetically and visually similar to the plaintiff's trademark "ATORVA" and thereby defendants were passing off their product "ATTOR" as and as that of the plaintiff's product, sold under its well known trade mark "ATTOR". Therefore, the plaintiff instituted the aforesaid suit for the aforesaid relief. In the said suit, the plaintiff submitted application Ex.5 for interim injunction. The said interim injunction application as well as the suit were resisted by the defendant. It was submitted on behalf of the defendant that the defendant in or about the year 2000 decided to introduce formulation containing atrovastatin as its active ingredient. That defendant following the practice of trade to coin / adopt the marks from active ingredients adopted the mark "ATTOR" after ascertaining that there was no other person who had a prior right in the mark, an application for registration was made. The said application was advertised in the Trade Marks Journal. Grant of registration was opposed by the plaintiff on the basis of their trademark "ATORVA". That in the meantime they introduced preparations bearing the mark "ATTOR" on 31/7/2002 and the said product commands a very good goodwill and reputation amongst the doctors, trade and consumers owing to its efficacy. It was specifically denied by the defendant that they are using the word "ATTOR" which is deceptively, confusingly, phonetically and visually similar to the plaintiff's trademark "ATORVA" and thereby defendants were passing off their product "ATTOR" as and as that of the plaintiff's product, sold under its well known trade mark ATORVA. It was submitted that in a overall comparison of the plaintiff's medicine "ATORVA" with that of defendant's medicine, preparation sold under brand name ATTOR, it is apparent that they are totally dissimilar in appearance, get-up, colour, scheme and patent of the label including logos and prise. The quality contained in the boxes are also different. That the application Ex.5 was also resisted on the ground of delay by submitting that the aforesaid suit for permanent injunction has been filed after a period of approximately 2.1/2 years to 3 years. It was also further submitted that other manufacturers are also using similar name. After hearing the learned advocates appearing on behalf of the respective parties and considering the rival submissions the learned trial court by the impugned order has rejected the application Ex.5 and refused to grant interim injunction in favour of the plaintiff as prayed for, however, directed the defendant to produce authenticated sale figure of "ATTOR" every six months till the disposal of the suit.
1.03. Being aggrieved by and dissatisfied with the impugned order passed by the learned trial court below application Ex.5 refusing to grant interim injunction as prayed for in favour of the plaintiff, the appellant herein - original plaintiff has preferred the present Appeal From Order with Civil Application for interim relief therein.
2.00. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has submitted that the learned trial court has materially erred in not granting the injunction as prayed for restraining the defendants from using the word "ATTOR" which is which is deceptively, confusingly, phonetically and visually similar to the plaintiff's trademark "ATORVA".
2.01. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has submitted that the learned trial court has failed to appreciate the ratio laid down by the Hon'ble Supreme Court in the case of Cala Heath Care Ltd. Vs. Cadla Pharmaceuticals Ltd., reported in AIR 2001 S.C. 1952 wherein the Hon'ble Supreme Court has held that where medicinal products are involved, the test to be applied for adjudging the violation of trademark law may not be at par with cases involving non-medicinal products. It is submitted that as observed by the Hon'ble Supreme Court in the aforesaid decision, stricter approach should be adopted while applying test to judge the possibility of confusion of one medicinal product for another by the consumer. It is submitted that as observed by the Hon'ble Supreme Court while confusion in the case of non-medicinal products may only cause economic loss to the consumers but confusion between the two medicinal products may have disastrous effect on health and in some cases life itself. It is submitted that the learned Judge has not appreciated the aforesaid fact while deciding the application Ex.5.
2.02. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that the learned trial court has failed to appreciate that the appellant is manufacturing and selling product under trademark "ATORVA" prior in time i.e. since January 2000 as the appellant had applied for registration of trademark before the competent authority on 5/4/1999 and the respondent - defendant had given application for registration of its product "ATTOR" on 23/2/2000. Therefore, it is submitted that the appellant has been using its trademark "ATORVA" prior to the respondent Company, the appellant being a prior user, the learned trial court ought to have protected the appellant - plaintiff.
2.03. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that the learned trial court has materially erred in refusing to grant injunction on the ground of delay and acquiescence on the part of the appellant - plaintiff. It is submitted that injunction could not be vacated on the ground of delay in filing the suit.
2.04.
Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that the learned trial court ought to have appreciated that the respondent - defendant has deliberately and intentionally adopted trademark "ATTOR" with a view to pass off it product with that of appellant trademark "ATORVA".
2.05. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that adoption of use of trademark "ATTOR" by the defendant would result in unfair and unjust enrichment for the respondent by trading in the goodwill and reputation of the appellant.
2.06. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that the learned judge has materially erred in not appreciating the fact that any similar product with that of the trademark of the appellant would create confusion in the market not only amongst Doctors and Chemists but also amongst the end users. Therefore, it is submitted that the learned trial court has materially erred in refusing to grant injunction as prayed for.
2.07. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that the learned trial court has erred in observing that both the trademarks appearing to have derived from generic name of the product and both are unregistered and related to same treatment and other similar products are available in the market derived from the generic names of drug i.e. Atrovastatin, ex-parte order granted earlier cannot be confirmed.
2.08. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that the learned trial court has also erred in observing that the originally Aurbindo Pharma Limited was owner of mark "ATTOR" and since the mark "ATORVA" is derived from generic name of the drug Atrovastatin, by using its six letters it cannot be said that the appellant is inventor of the mark of "ATORVA". It is submitted that in fact, the appellant was the first to derive and adopt mark "ATORVA" and "ATTOR" in the year 1999 and subsequently any other manufacturers started imitating the said marks for the product of Atrovastatin.
2.09. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has further submitted that the learned trial court has also erred in observing that there are other similar products like ATORVA, ATROSTATE, ATROLIP, ATOCOR, AZTOR etc. in the market of other companies without having any substantial material produced in the court for arriving at such observation.
2.10. Mr.Mihir Thakore, learned senior advocate appearing on behalf of the appellant has relied upon the following decisions in support of his prayer to allow the present Appeal From Order :-
AIR 2001 S.C. 1952.
(3) SCC 65.
(6) SCC 1.
(3) SCC 90 and AIR 1998 Gujarat 247.
3.00. Present Appeal From Order is opposed by Mr.Navin Pahwa, learned advocate appearing on behalf of the respondent - defendant. It is submitted by Mr.Pahwa, learned advocate appearing on behalf of the defendant that in the facts and circumstances of the case the learned trial court has not committed any error and/or illegality in refusing to grant injunction in favour of the plaintiff. It is submitted that the learned Judge has exercised discretion judiciously and therefore, no interference of this Court is called for.
3.01. Mr.Pahwa, learned advocate appearing on behalf of the respondent - defendant has relied upon the following decisions of the Hon'ble Supreme Court support of his submissions that as held by the Hon'ble Supreme Court when Court has exercised jurisdiction judiciously, the same is not required to be interfered with.
In the case of Wander Ltd. v. Antox India (P) Ltd reported in 1990 (Supp.) SCC 727 and in the case of Ramdev Food Products (P) Ltd. v. Arvindbhai Rambhai Patel, reported in (2006) 8 SCC 726 (para 125 to
127) 3.02. Mr.Pahwa, learned advocate appearing on behalf of the respondent - defendant has submitted that even on merits also the learned trial court has not committed any error and/or illegality in refusing to grant injunction as prayed for. It is submitted the learned trial court has rightly refused to grant injunction by observing that as the suit for injunction has been preferred after a period of three years, the plaintiff is not entitled to injunction as prayed for. It is submitted that while considering the grant of injunction, delay plays a vital role.
3.03. Mr.Pahwa, learned advocate appearing on behalf of the respondent - defendant has further submitted that as such the use of the word "ATTOR" is neither deceptively, confusingly, phonetically and visually similar to the plaintiff's trademark ATORVA. It is submitted that the defendant has derived word "ATTOR" from generic name of drug Atrostatin.
3.04. Mr.Pahwa, learned advocate appearing on behalf of the respondent - defendant has further submitted that the plaintiff has suppressed the material fact that in fact, Aurbindo Pharma Limited the owner of the mark "ATTOR" and since the name "ATORVA" is derived from the generic name of the drug Atrovastatin, the learned judge has rightly observed that by using its first six letters it cannot be said that the appellant - plaintiff is inventor of mark "ATORVA".
3.05. Mr.Pahwa, learned advocate appearing on behalf of the respondent - defendant has further submitted that the learned trial court has rightly refused to grant injunction by observing that the use of the word "ATTOR" by the defendant is not similar or identical to that of the plaintiff trademark "ATORVA". It is submitted that the learned trial court has rightly observed that as there are other medicines available in the market in the name of ATOR, ATORIN, ATORVA, ATROSTAT, ATSTAT, AVASTIN, STORVAS, STATOR etc. the plaintiff is not entitled to injunction as prayed for.
3.06. Mr.Pahwa, learned advocate appearing on behalf of the respondent - defendant has further submitted that as such, there is priam facie finding given by the learned trial court that both the trademarks are different and there is no likelihood of confusion at all. It is submitted that the learned trial court has rightly refused to grant injunction by observing that the balance of convenience is not in favour of the plaintiff and the plaintiff is not likely to suffer irreparable loss if the injunction is vacated.
3.07. Mr.Pahwa, learned advocate appearing on behalf of the respondent - defendant has relied upon the following decisions in support of his submission to dismiss the present Appeal From Order :-
(38) PTC 130 (Delhi) 2008 (37) PTC 569 (Delhi) (2006) 9 SCC 41 2001 (21) PTC 422 (Gujarat) AIR 1970 S.C. 1649 and 2008 (2) MIPR 253 (SC).
4.00. Heard the learned advocates appearing on behalf of the respective parties at length.
4.01. At the outset, it is required to be noted that the appellant - plaintiff has instituted the aforesaid suit before the learned trial court for permanent injunction against the defendant restraining the defendant from committing act of passing off by the defendants by using the trademark "ATTOR", which according to the plaintiff is similar and/or descriptive to that of the trademark of the plaintiff - "ATORVA". The main contention on behalf of the plaintiff is that he is prior user of the trademark - "ATORVA", as it had applied for registration of the trademark - "ATORVA" on 1999 and the defendant submitted application for its mark - "ATTOR" on 23/2/2000. It is to be noted that the defendant had started using the trademark - "ATTOR" in the year 2003 and started manufacturing the same which was known to the plaintiff since May/June 2003 and despite the same the suit has been preferred in the year 2005 i.e. approximately after a period of three years. As such, the plaintiff has not explained the delay at all. It is to be noted that the suit is filed for permanent injunction and therefore, the delay is a vital consideration. By not using the trademark "ATTOR" by the defendant and permitting it to manufacture the said drug and sell it in the market, it can be prima facie said that the plaintiff is not entitled to any equitable relief on the ground of delay and acquiescence.
4.02. It is also required to be noted that both the trademarks i.e. "ATORVA" and "ATTOR" used by the respective parties have been derived from generic name of the drug - "ATROVASTATIN". It is also required to be noted that one Aurbindo Pharma Limited was the original owner of mark - "ATTOR" and that there was suit filed by the appellant before the City Civil Court at Ahmedabad against the said Aurbindo Pharma Limited, restraining it from using the trademark "ATTOR" and the learned City Civil Court has rejected the application for interim injunction submitted by the plaintiff in the said suit, against which the appellant herein - original plaintiff preferred Appeal From Order No. 90 of 2002 before this Court with Civil Application No. 1486 of 2002 for interim relief therein, which came to be dismissed by the learned Single Judge of this Court vide order dtd.22/2/2002 and therefore, as such the appellant - plaintiff has failed to get any interim injunction against the said Aurbindo Pharma Limited. The order passed by this Court came to be challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court initially extended ad-interim relief granted by the learned City Civil Court, Ahmedabad, however, ultimately the said appeal came to be disposed of by the Hon'ble Supreme Court as while continuing the said interim relief as the original defendants - respondents have started to use the name of their medicine ATRONIL and not ATOR and therefore, the Hon'ble Supreme Court disposed of the aforesaid appeal.
4.2.1. In view of reliance placed upon the decisions by the learned advocate appearing on behalf of the appellant is concerned, in view of the findings, the same shall not be of any assistance to to the facts and circumstances of the case.
4.03. It is also required to be noted that as such there are other medicine available in the market under the similar name / mark such as ATOR, ATORIN, ATORVA, ATROSTAT, ATSTAT, AVASTIN, STORVAS, STATOR etc. Therefore, as rightly observed by the learned trial court the name of the mark of the appellant is not invented by it and the mark of the defendant - "ATTOR" is not deceptively, confusingly, phonetically and visually similar to the plaintiff's trademark "ATORVA. As stated hereinabove, the word "ATTOR" used by the plaintiff is the first six letters from the generic word of drug "Atrovastatin". There is specific and clear finding given by the learned trial court that there is no similarity in colour, packing price etc. Even this Court has also considered the aforesaid aspect and this Court is also prima facie of the opinion that there is no similarity between the two trademarks and there is no likelihood of any confusion amongst doctors, pharmacists, patients and even common man, as alleged by the plaintiff. Under the circumstances, it cannot be said that the learned trial court has committed any error and/or illegality in refusing to grant injunction as prayed for. The learned trial court has exercised the discretion judiciously while considering the application Ex.5 for interim injunction. As held by the Hon'ble Supreme Court in the case of Ramdev Food Products (P) Ltd. (supra) and Wander Ltd. (supra) when the learned trial court has exercised the discretion judiciously and has passed the impugned order giving cogent and convincing reasons, appellate court would not be justified in interfering with the order passed by the learned trial court. Under the circumstances, the impugned order passed by the learned trial court is not required to be interfered with by this Court in exercise of appellate jurisdiction.
In the case of Ramdev Food Products (P) Ltd. (supra) the Hon'ble Apex Court in para 125 to 127 has observed and held as that;
"125.
We are not oblivious that normally the appellate court would be slow to interfere with the discretionary jurisdiction of the trial court.
126. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, the appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored the settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this Court time and time again. [See for example Wander Ltd. v. Antox India (P) Ltd., Laxmikant V. Patel v. Chetanbhai Shah and Seema Arshad Zaheer v. Municipal Corpn. of Greater Mumbai]
127. The appellate court may not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion."
5.00. In view of the above and for the reasons stated above, present petition fails and the same deserves to be dismissed and is accordingly dismissed. In view of dismissal of the main Appeal From Order, no order in the Civil Application for stay and the same is also consequently dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R.
SHAH, J.] rafik After the pronouncement of the above judgement and order, a request is made on behalf of the learned advocate appearing on behalf of the appellant to stay the execution of the above judgement and order so as to enable the appellant to challenge it before the Higher Forum.
In the facts and circumstances of the case, execution, operation and implementation of the present judgement and order is stayed upto 15/11/2011.
[M.R.
SHAH, J.] rafik Top