PARKE DAVIS AND CO Vs. D B T PHARMACEUTICALS

JUDGEMENT

(1.) This plaintiff's appeal is directed against an order dated 8th December, 1978, refusing to grant temporary injunction in favour of the plaintiff and against the defendant

(2.) The suit, which was in relation to infringement of trade mark rights, was for perpetual injunction against the defendant from using the trade mark. The plaintiff also prayed for grant of temporary injunction against the defendant. The plaintiff is a manufacturer of various types of medicinal products having separate registered trade marks for each type and one which has given rise to the present cause is the alleged use by the defendant of the trade mark 'DRYL' of which the appellant-plaintiff was the registered proprietor having Registration No. 216356 dated 4-7-1963, The defendants are also manufacturers of medicinal products. The other trade marks of medicinal and pharmaceutical preparations of which the appellant is the registered proprietor are Benadryl, Caladryl. Ambodryl, Ergodryl, Bodryl and Combodryl. By virtue of the registration of the said trade marks, the plaintiff claims sole and execlusive right to its use.

(3.) It appears that some time in the year 1976, the plaintiff came to learn that the defendants, who were having their Head Office at Muzaffarpur, were manufacturing certain medicinal preparations giving it a mark "D.B. DRYL". It is stated on behalf of the appellant that the plaintiff first requested the defendants to abstain from using the word 'DRYL' in their medicinal preparation and ultimately filed the suit in question which has given rise to this appeal. The suit, as stated earlier, was filed for perpetual injunction of the defendant from using the trade mark of which the appellant claimed to have exclusive right of user. Besides, the appellant also claimed temporary injunction against the defendant. The learned 1st Additional District Judge has refused to grant temporary injunction and the reason which weighed with him was that there was no chance of confusion in a purchaser's mind between plaintiff's and defendant's products even though the mark 'DRYL' was being used also by the defendant for its pharmaceutical preparation. In other words, according to the learned Judge, the plaintiff had no prima facie case. The prayer for grant of temporary injunction having thus been refused, the appeal is now laid before this Court.