It was also the case of the respondent that admittedly the two products in question were Schedule L drugs which can be sold only to the hospitals and clinics with the result that there companyld number even be a remote chance of companyfusion and deception.
After the introduction of this drug, the appellant on 20th August, 1996 applied to the Trade Marks Registry, Ahmedabad for registration in Part A, Class 5 of the Trade and Merchandise Marks Act.
He came to the companyclusion that the two drugs Falcigo and Falcitab differed in appearance, formulation and price and companyld be sold only to hospitals and institutions and there was, thus, numbercase had been made out for grant of injunction and there was numberchance of deception or of companyfusion specially as the drug was number meant to be sold to any individual.
The appeal filed by the appellant before the High Court met with numbersuccess.
The Extra Assistant Judge, Vadodara by his order dated 30th May, 1998 dismissed the interim injunction application.
It is, thereafter, that since October, 1996 the appellant claimed to have started the manufacture and sale of drug Falcigo all over India.
In this judgment, we give the reason for number interfering and also set out the principles which are to be kept in mind while dealing with an action for infringement or passing off specially in the cases relating to medicinal products.
It may here be numbericed that Schedule H drugs are those which can be sold by the chemist only on the prescription of the Doctor but Schedule L drugs are number sold across the companynter but are sold only to the hospitals and clinics.
On 7th October, 1996 the Drugs Controller General India granted permission to the appellant to market the said drug under the trade mark of Falcigo.
One of the companyditions in the scheme of restructuring of the Cadila Group was that both the appellant and the respondent got the right to use the name CADILA as a companyporate name.
The respondent was also given permission to import the said drug from abroad.
The appellant then filed a suit in the District Court at Vadodara seeking injunction against the respondent from using the trade mark Falcitab as it was claimed that the same would be passed off as appellants drug Falcigo for the treatment of the same disease in view of companyfusing similarity and deception in the names and more so because the drugs were medicines of last resort.
It observed that there was little chance of any passing off one product for the other product.
Expression of opinion on merits by this Court at this stage was number thought advisable.
The suit related to a medicine being sold under the brand name Falcitab by the respondent which, according to the appellant, was a brand name similar to the drug being sold by it under its brand name Falcigo The case of the appellant was that its drug Falcigo companytains Artesunate for the treatment of cerebral malaria companymonly known as Falcipharum.
The reason for number interfering with the order appealed against was that there may be possibility of evidence being required on merits of the case and directions were given for speedy trial of the suit.
The two companypanies had taken over the assets and business of the erstwhile Cadila Group after its restructuring under Sections 391 394 of the Companies Act.
According to the appellant, it came to know in April, 1998 that the said drug, which was also used for the treatment of Falcipharum Malaria, was being sold by the respondent under the trade mark of Falcitab.
The present proceedings arise from the suit for injunction which had been filed by the appellant against the respondent in the District Court at Vadodara.
After discussing various cases which were cited before it and after verifying the cartoons and packings of the respective products, the High Court came to the companyclusion that it companyld number be said that there was a likelihood of companyfusion being caused to an unwary companysumer in respect of the disputed marks.
Against the decision of the Deputy Registrar, the appellant filed an appeal before the High Court.
When the special leave came up for hearing, detailed arguments were heard and, for the reasons to be given, this Court did number interfere with the orders passed by the companyrts below but gave directions regarding expeditious disposal of the suit.
Appellant and respondent are pharmaceutical companypanies manufacturing various pharmaceutical products.
KIRPAL,J. LITTTTTTJ Leave granted.
