Prabir Kumar Majumdar, J. - (1.) This is an application taken out by the plaintiff/petitioner for an order of injunction restraining the defendant, its servants, and agents from in any way using the impugned mark Sulphacetamide Eye Drops 20% B.P. or any other mark which is deceptively and/or confusingly similar to the petitioner's registered trade mark Locula Sulphacetamide Eye Drops 10%, 20% or 30%; an order of injunction restraining the defendant, its servants or agents from in any way using the cartons with the get-up, its colour combination, style or writing, picture, letter-press, or in any other cartons or packages which may be deceptively similar to labels, packages, cartons used by the petitioner for their aforesaid product bearing the registered trade mark Locula 10%, 20% or 30% B.P.; an order of injunction restraining the defendants or its agents from selling or offering for sale the said Eye Drops or any other products sharing the impugned mark Sulphacetamide Eye Drops 20% B.P. or any other marks similar or deceptively similar to the cartons, packages used by the plaintiff for its products under the trade mark Locula 20% B.P. The plaintiff/petitioner has also asked for other reliefs, appointment of special Officer etc.
(2.) The case of the petitioner is that the petitioner's said product Sulphacetamide Eye Drops B.P. 20% has been registered under Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act) being No. 309056 dated 8th October, 1975 in respect of medicinal preparations for the treatment of inflammatory diseases relating to eyes, ears, nose and throat of human beings. The petitioner has been selling and marketing the said preparation under the caption Sulphacetamide Eye Drop B.P. 20% with brand name 'Locula' in different parts of India. It is also the petitioner's case that the petitioner sold the said product Sulphacetamide Eye Drops B.P. 20% in 10Ml. Phial with a dropper and a label pasted under the colour scheme and combination of yellowish and pink with the style of writing Sulphacetemide Eye Drops B.P. 20% with pictures inside the pink square block showing the pictures of capsules, drop and a mule.
(3.) It is the further case of the petitioner that sometime in May, 1989 the petitioner came to know through various marketing agents that the respondent has been selling eye drops at Calcutta, Delhi, Punjab and other places under the trade name of Sulphacetamide Eye Drops B.P. 20% affixing the label on the said product confusingly or deceptively similar to the registered trade mark of the petitioner. It is alleged that the respondent has also copied the colour combination, get up, style of writing, type of writing including the logo, design and also used the words "Eye- Drops 20%" confusingly similar to the get-up and colour combination with its logo of the petitioner to cause confusion or the same is likely to mislead the people at large. It is further alleged that the said get-up, logo, design, colour combination, style of writing, and type of writing have been so similar to the registered trade mark of the petitioner that the people are likely to be confused and/or deceived by such colour combination, get up, logo, design, type of writing and style of writing used by the respondent.;