K.K.Sharma,JRTM - (1.) THIS order will dispose of on opposition filed by M/s. Glenmark Pharmaceuticals Ltd. B/2, Mahalaxmi Chambers, 22, Bhulabhai Desai Road, Mumbai 400 026, (hereinafter called Opponents) to oppose the registration of Trade Mark "RIDULCER" in Class 5 in respect of pharmaceutical and medicinal preparations under Application No. 508896 B filed by Vividhmargi Investment Pvt. Ltd. 11/12, Udyog Nagar, S.V. Road, Goregaon (West), Mumbai 400 062 (hereinafter called the Applicant).
(2.) Briefly stating the fact of the present case, an application for registration of trade mark "RIDULCER" in Class 5 in respect of Pharmaceutical and Medicinal preparations was filed by Vividhmargi Investment Pvt. Ltd (hereinafter called the Applicants). The application was filed on 20.4.1989 and the use of the mark was proposed to be used on date of application. The application in due course was accepted for registration in Part B of the Register and was accordingly advertised in the Trade Mark Journal No. 1067 dated 16.11.1993. A Notice of opposition was filed by M/s Glenmark Pharmaceuticals Ltd., (hereinafter called the Opponents). Opposing registration of trade marks inter alia on the grounds that the registration of the trade mark was prohibited under Sections 9, 11(a), 12(1) and 18(1) of the Trade and Merchandise Marks Act, 1958 (hereinafter called the Act). The applicant filed the counter statement denying the allegations. They further stated that they have adopted the trade mark bona fidely in the year 1988, It was prayed that the notice of opposition may be dismissed and the costs of the proceedings may be awarded. The opponents filed an affidavit of Mrs. Blanche Elizabeth Saidhana, alongwith Annexure marked as Exhibits A to D as evidence in support of opposition. No evidence in support of application was filed, despite opportunity having been granted to the applicant. On the contrary they relied upon the contents of counter statement. On completion of evidence, the matter was listed for hearing and the matter came up for hearing on 23.2.2000 when Mr. V.F. Shah appeared for applicants and Mr. V.S. Hegde appeared for opponents. Arguments were heard and the order was reserved. The arguments of the Ld. Counsel for the opponents in brief were as under: (1) The trade mark is combination of 2 descriptive words RID (means to get rid of) and ULCER (is a decease) and conveys the idea that one can get rid of Ulcer by using the medicine 'RIDULCER' and hence registration is contrary to Section 9 of Trade and Merchandise Marks Act. (2) The Opponents have been using the RELCER since the year from 1981 and they have filed evidence of the use of the trade mark and because of the reputation acquired by prior use of their trade mark, any subsequent use of RIDULCER by the applicant is likely cause confusion and hence objection under Section 11 (a) of the Act. (3) The applicant's trade mark RIDULCER is very close to the opponents registered trade mark RELCER and the goods are also same hence objection under Section 12 of the Act. (4) The applicants have not furnished any explanation for the adoption of the same or similar mark and they have not filed any evidence to substantiate their claim to be the proprietor of the trade mark. In view of the prior use of the trade mark by the opponents, any subsequent adoption or use of same or similar mark by the applicant cannot be called as bona fide, and hence they cannot be called the proprietors of the trade mark. Mr. V.F. Shah's argument were as under:-- (1) The application is accepted in Part B of the Register and hence trade mark is capable of distinguishing. Ulcer cannot be get rid off. It can be cured only and hence trade mark RIDULCER does not convey any meaning. (2) Applicant's trade mark is neither identical nor deceptively similar to opponents trade mark. Hence objection Under Sections 11(a) & 12(1) of the Act are not attracted.
(3.) I have gone through the records of the proceedings and submissions made by the parties.;