WALTER BUSHNEL PVT. LTD. Vs. MANKIND PHARMA PVT. LTD. & ANOTHER

JUDGEMENT

(1.) THE applicant has come forward with this application for the relief of removal of the trade mark and rectification of the register under Sections 47, 57 and 125 of the Trade Marks Act, 1999 (Hereinafter referred to as the Act') in respect of the registration No.1309918 in Class 5 of the trade mark (DROTKIND -M) by expunging the entry from the register.

(2.) BOTH the applicant as well as the first respondent are engaged in the manufacture of the medicinal preparations and its sale.

(3.) THE applicant, a private limited company is engaged and dealing with the manufacture and sale of medicinal and pharmaceutical preparations. The case of the applicant is that they coined and bona fidely adopted the trade mark DROTIN in respect of the medicinal preparations in February, 1997 and obtained registration on 3.2.1997 under No.732349 in Class 5. The drug licence was obtained for the manufacture of medicinal preparations under the trade mark "DROTIN" as per the drug licence dated 2.4.1997 issued by the State Drug Controller for the manufacture and sale of medicinal preparations in respect of the coated tablets containing Naptha (Dhydro Eithereine Chloride) as an active ingredient. The applicant has used the trade mark "DROTIN" continuously, extensively and exclusively right from April, 1997 and acquired immense reputation and goodwill. The trade mark "DROTIN" has acquired distinctiveness. The applicant sought for cancellation and expunging the impugned trade mark of the first respondent by raising the following grounds: