- (1.) This Appeal is against the Judgment of the Calcutta High Court dated 6th November, 1997.
(2.) Briefly stated the facts are as follows: The Appellants are an Indian Pharmaceutical Company. The Respondents are also a Pharmaceutical Company which manufacture pharmaceutical products in several countries. The Respondents filed a Suit for an injunction based on an action for passing off in respect of mark "OCUFLOX" used on a medicinal preparation manufactured and marketed by the Respondents. The Respondents claimed that they were the prior users of the mark OCUFLOX in respect of an eye care product containing Ofloxacin and other compounds. They claimed that they first used this Mark on 9th September, 1992, after which they marketed the product in other countries like Europe, Australia, South Africa and South America and that they had obtained registration in Australia, Bolivia, Ecuador, Mexico, Peru, South Africa, Canada and the United States of America. They claimed that they had also applied for registration of the mark in several other countries including India and that their applications were pending. The Appellants were selling "OCUFLOX" on a medicinal preparation containing CIPROFLOXACIN HCL to be used for the treatment of the eye and the ear. They claim that they coined the word "OCUFLOX" by taking the prefix "OCU" from "OCULAR" and "FLOX" from "CIPROFLOXACIN" which is the basic constituent of their product. The Appellants were granted registration by the Food and Drug Control Administration on 25th August, 1993. They have also applied for registration of the mark OCUFLOX in September 1993. Their application is also pending.
(3.) On 18th December, 1996 the Respondents got an ad interim injunction. This injunction however was vacated on 29th January, 1997. The single Judge held that the Respondents' product was not being sold in India and the Appellants having introduced the product first in India, the Respondents were not entitled to an injunction.;