The Plaintiff filed a temporary injunction against the defendant for restraining the defendant in using the trademark O-ANXIT. The plaintiff is a pharmaceutical company and has been doing business since 1973. On 12.09.1988 they had adopted the trademark ANXIT and obtained registration under class 5 vide Application no. 497658. Defendant no. 1 is the manufacturer, and defendant no. 2 is the marketer.
PLAINTIFF’S ARGUMENTS: Plaintiff is arguing that they have been using the mark ANXIT since a long time, and the defendant is infringing their mark by using O-ANXIT. It is contended that the marks are similar to each other, and a consumer might get confused between them.
DEFENDANT’S ARGUMENTS: Defendant is contending that the plaintiff is coming to the court with unclean hands and is supressing material facts. Defendant said that the plaintiff was aware about the use of the mark O-ANXIT since the year 2011. They are saying that they have started the use of the mark in the year 2009. Defendant further contended that when the defendant applied for registration of the mark O-ANXIT, the plaintiff even filed an opposition in the year 2010. Thus there is a delay of 10 years in approaching the court. They have contended that Plaintiff has accepted and acquiescing the sale of defendants products since 2010-11. They are contending that the defendant is selling the products from 2009 till date, there is no complaint by the public with regard to the side effects.
COURT HELD: The plaintiff has suppressed all these material facts. If these were disclosed to the court, the court would not have granted the ad-interim injunction at all. Therefore, we reject the application filed by the plaintiff. The plaintiff and defendant's drugs are schedule H drugs, it is not likely to cause confusion among the doctors and pharmacists. The defendant's drug is in the market since 2009, till date there is complaint as to the side effects or confusion. It is also well settled, when the plaintiff has filed their opposition to the trademark registration of the defendant and when the defendant has been in fact in the market for more than a decades or quite long time, this would entitled to the defendant to the discontinuation of the interim order in favour of the plaintiff. This court is of the opinion that at this stage, the plaintiff has not made out the prima facie case for grant of temporary injunction as prayed. The balance of convenience lies more in favour of defendants than the plaintiff.
ORDER : I.A.No.2 filed by the plaintiff under order 39 rules 1 & 2 r/w Sec.151 CPC are hereby dismissed.