Jagson Pal Pharmaceuticals vs Jagson Pal Parenterals (P) Ltd.
1997 Latest Caselaw 180 Del

JUDGMENT

Anil Dev Singh, J.

(1) The case of the plaintiff as it unfolds from the plaint is that it is joint business under the trading style 'Jagson' and 'Jagson Pal'. In the year 1964 a partnership was constituted under the name and style of M/s. Jagson Pal & Co. On January 1, 1979 plaintiff M/s. Jagson Pal Pharmaceuticals Pvt. Ltd. was inducted as partner in the firm and the business was carried on in the name of Jagson Pal and Co. On July 31,1979 partnership-firm was dissolved and the plaintiff was allotted the goodwill, trade mark and trade name of the firm. It is alleged that the plaintiff is using the trade mark 'Jagson pal' encompassed by a rectangle on its pharmaceutical preparations. It is stated that the trade mark 'Jagson' was registered in favour of the plaintiff in respect of Pharmaceuticals etc. falling in class 10 on 6th February, 1978 under the Trade & Merchandise Marks Act, 1958 and subsequently renewed from 6th February, 1992 for a further period of 7 years.

(2) It is further averred that the plaintiff discovered that the defendant is using 'Jagson' as essential feature of its trading style and employing the said word surrounded by a rectangle on its goods as well. Learned Counsel for the plaintiff submits that the defendant by use of the word 'Jagson' as an essential feature of its trading style is misleading the public at large and is also thriving on the reputation and goodwill of the plaintiff.

(3) Learned Counsel appearing for the defendant does not dispute the fact that the defendant started the business under the name and style of "Jagson Parenterals Pvt. Ltd in the year 1994. It is also not disputed that the defendant has not got the registration of the trade mark Jagson Parenterals in its favour as yet though an application for this purpose has already been filed. Learned Counsel for the defendant submits that the defendant is not misleading the public at large by using the trading style and the trade mark Jagson Parenterals as there is no visual and phonetically similarity between the two marks namely "Jagson pal" and "Jagson Potentials. I do not agree with the submission of the learned Counsel. Juxtaposing of the marks namely " pal" and "Jagson Potentials clearly establishes the similarity between them. Word Jagson is common to both of them. An unwary purchaser of the medicine can be mislead into buying the product of Jagson Parenterals while intending to buy the product of the plaintiff. Learned Counsel for the defendant contends that the defendant is only manufacturing injections and eye drops which are not being manufactured by the plaintiff. On the strength of this submission, he submits that the defendant cannot be restrained from using the trading style and house mark 'Jagson Parenterals'. I am not impressed with the submission of learned Counsel for the defendant.

(4) The reason is that when a buyer buys an injection or a bottle of eye drops manufactured by the defendant he may be thinking that the plaintiff had also entered into the field of manufacture of eye drops and injection as well. A trader should not be allowed to thrive on the goodwill and reputation of another trader. The defendant by using the word 'Jagson' in combination with the work 'Parenterals' is likely to mislead and confuse the public at large which cannot be allowed. Learned Counsel for the defendant in support of his submission relied upon Section 30 of the Trade and Merchandise Marks Act, 1958. But in the facts of the instant case, the provision is of no help to the defendant.

(5) The plaintiff is a senior user of the trade mark 'Jagson' and the same is registered in favour of Mr. Hagmohan Singh Kochhar trading as Jagson Pal & Co. While the defendant on his own showing started its business much later than the plaintiff in the name and style of Jagson Parenterals in the year 1994.

(6) Having regard to the above discussion, I am of the prima facie opinion that the defendant needs to be restrained from using their trading style in combination with the word Jagson and also from using it as their trade mark till the disposal of the suit. I order accordingly.

(7) It will be however, open to the defendant to change its name so that there is no similarity between its mark and that of the plaintiff. Learned Counsel for the plaintiff states that his client will file an application before the Trade Mark Registry for amend Jagson Parenterals System with the request for deletion of the words Parenterals System. LA. stands disposed of.

(8) S. No. 168/97 Learned Counsel for the plaintiff seeks time to file replication. Let the same be filed within 4 weeks. Documents in power and possession of the parties be filed within 8 weeks alongwith the affidavits of discovery and production. List the matter before the Joint Registrar for carrying out admission/denial of the documents on 15th July, 1997. Thereafter the matter be listed before Court on 9th September, 1997.