Raghbir Singh, Vice Chairman - (1.) APPEAL No.2/1999 was filed in the High Court of Gujarat at Ahmedabad on 3.5.1999 and the same was transferred to this Board in terms of Section 100 of the Trade Marks Act, 1999.
(2.) The appellant herein above filed an application being application No.495387 in class 05 for registration of a trade mark 'DOPAMINE' word per se on 4.8.1988. The user claim of the mark was since 20.12.1985. The mark in due course was advertised in Trade Marks Journal No.1094, dated 1.1.1995 at page 1375. The first respondent herein above gave the notice of opposition on the grounds that the opponents and their predecessors are the proprietors of the mark 'DOPAMET' and the impugned mark 'DOPAMINE' is deceptively and confusingly similar to their mark 'DOPAMET'. The opponent's mark 'DOPAMET' has acquired reputation. The impugned mark is neither distinctive nor capable of distinguishing the goods of applicant during the course of trade. Thus, the mark does not qualify for registration under section 9 of the Act. The mark does not qualify for registration under sections 11(a) and 11(e) of the Act. In usual course the appellants filed the counter statement denying all the material allegations of the opponent. The opponents filed their evidence by way of affidavit dated 20.2.1996 and the appellant/applicant did not file any evidence under rule 54. The hearing was held on 26.2.1999 by the Assistant Registrar. It was argued by the learned counsel for the opponent that the word 'DOPAMINE' is a non proprietory generic name and as such, it should not be allowed to be registered as a trade mark under any circumstances. He submitted that DOPAMINE is the name of a particular chemical compound which has a therapeutic property of being an 'ad energic' and this fact is well known to the doctors, chemists, pharmacists and all other persons associated with the pharmaceutical trade. Thus, the mark does not qualify for registration under section 9 of the Trade and Merchandise Marks Act, 1958. Further, the mark is descriptive of goods and thus is not qualified to be registered. The learned counsel for the appellant/applicant opposed the arguments advanced by the learned counsel for the opponent/first respondent. The learned Assistant Registrar concluded that the opponents have rightly said that the word DOPAMINE is a non proprietory generic name of a single chemical compound and as such it cannot be registered as a trade mark and thus he is in agreement with Shri Krishna, the learned counsel for the opponents in that regard.
(3.) THE appeal was heard in the sitting of the Board held at Ahmedabad on 21.12.2004. Shri R.R. Shah appeared for the appellant and Shri Manish Saurastri appeared for the first respondent.;