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The Substance of Application has to be seen and the provisions mentioned in the Application

The Parties:
Petitioner namely Macleods Pharma was the registered Proprietor of Trademark OFLOMAC under No.838726 in class 05.

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. There can be possibility of confusion and deception amongst the doctors also.
  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. Hence an educated person in England can not be a yardstick for evaluating confusion and deception in India. In India different test would apply.
  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. Reason is that it is not the doctors who has to consume the medicine. It is the average persons, who have to consume the medicines and it is not like that every patient is educated one.
  5. Confusion and deception may also occur in relation to prescription drug also.
  6. The decisions given in interlocutory applications do not decide cases conclusively. Hence the same is not binding.
  7. Limitation Act is not applicable to the cancellation petitions. It is submitted that this proposition can also not be doubted as the Trade Marks Act 1999 does not prescribes any time limit for filing cancellation petition.
  8. The substance of Application has to be seen and not the provisions mentioned therein. In the subject matter case, the petitioner has mentioned Section 151 CPC in the Application. However the same was in fact meant to be application under Section 124 of Trade Marks Act 1999. The Hon'ble Court has observed that mere mentioning of wrong provision of law in pleading , is not decisive. It is the whole tenor of the Application , which has to be seen while evaluating the fate of the Application. In the subject matter case, the Hon'ble Court proceeded to consider application mentioned as under Section 151 CPC to be in fact application under Section 124 of the 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 exercise of jurisdiction by the lower authority. As in the case, the Petitioner has failed to point out any glaring perversity, the Hon'ble Division Bench refused to interfere with the Judgement assailed.

Case Law Discussed:
Case Title: 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

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.

Written By: Ajay Amitabh Suman, Patent and Trademark Attorney - Hon'ble High Court of Delhi.
Email: [email protected], Ph No: 9990389539

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