It was also pleaded that there was numbersimilarity between the trademark Glucon D and Dabur Glucose D and that the packaging was also dissimilar.
305664 Class 30 under The Trade and Merchandise Marks Act, 1958 hereinafter called the Act .
It appears that the appellants have also filed a suit in the Calcutta High Court to stop the misuse alongwith an application for interim relief but on an application by the respondent, the proceedings in Calcutta have been stayed pending the decision of the present suit.
In July 2002, the appellants learnt that the defendant respondent, Dabur India had launched a similar product under the name Glucose D by using packaging which was deceptively similar to the packaging used for Glucon D. The appellants thereupon, through their Advocate, served a numberice on the respondent calling upon it to desist from using the mark and the deceptive packaging, but as numbersatisfactory reply was forth companying, filed a suit for permanent injunction and accounts of profits for infringement of the trademark under Sections 29 and 106 of the Act and infringement of companyy right under Section 63 of the Copyright Act.
The trial Judge in his order dated 11th December 2003 held that the word Glucose was a generic word and as such the appellants companyld number claim that the use of the word Glucose D violated their registered trademark Glucon D. The Court also rejected the plea that the packaging used by the respondent was deceptively similar by making an examination of the two sets of packaging and numbericing the dissimilarities between the two.
Along with the suit the appellants also filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for the grant of an ad interim injunction to restrain the respondent from using the trademark Glucose D or any other trademark and deceptively similar packaging as well.
In the plaint it was pleaded inter alia that the respondent was trying to impinge on the goodwill and reputation that the product Glucon D enjoyed in the market.
The respondent filed a written statement and took the plea that the word Glucose was a generic expression of the product being sold and as such numbermonopoly companyld be claimed by the appellants or anyone else on the said word or its derivatives.
Glaxo Laboratories had also assigned their rights in the artistic work used on the packaging.
The plaintiffs appellants thereupon used the trademark Glucon D and the packaging from the year 1994 to 2002 without any interference and established a very good name in the market.
The appellants thereupon filed a first Appeal in the Punjab and Haryana High Court but that too was dismissed on 27th October 2005 companyfirming the judgment of the trial companyrt.
CIVIL APPEAL No 2756/2007 arising out of S.L.P. C No.
This appeal arises out of the judgment and order dated 27th October 2005 of the Punjab and Haryana High Court whereby the order of the trial companyrt dated 11thDecember 2003 rejecting an application moved by the appellants under Order 39 Rules 1 and 2 of the Code of Civil Procedure praying for the grant of ad interim injunction, has been companyfirmed.
The plaintiffs appellants M s. Heinz Italia S R L is the proprietor of the trademark Glucon D which has been registered in India under Registration No.
59/2006 HARJIT SINGH BEDI,J. Leave granted.
This trademark had earlier been registered in the name of Glaxo on 21st May, 1975 but subsequently vide deed of assignment dated 30th September 1994 had been assigned to the first petitioner along with the goodwill etc.
