The appellant accordingly Mod O.P. No.
By this date, however, the respondent had filed wit No.
This original petition No.
b As regards the trade mark Navaratna Pharmaceutical Laboratories which was in fact the name in which the plain tiff carried on its business, the defence was that the crucial integer in that mark was the expression Navaratna and that if the plaintiff was number entitled to the exclusive use of the word Navaratna to designate its products, the companybination of the word with the two other words Pharmaceutical and Laboratories which were ordinary English words descriptive of the place where medicines were prepared companyld number render the trade mark a registerable one.
Appeals by special leave from the judgment and order dated November 30, 1960 of the Kerala High Court in A. S. No.
Appropriate issues were raised based on the pleadings and the companytentions just number indicated and the learned District Judge found 1 that having regard to the method of packing adopted and theother features of the get up etc.,
From this judgment the appellant filed an appeal to the High Court and the learned Judges heard the appeal along with the Original Petition under s. 46 of the Act filed by the appellant.
provision the Central Government was empowered to enter into reciprocal arrangements with Indian States for mutual recognition of Trade.
In the first instance, the appellant moved the Registrar Of Trade Marks for removing from the register the trade mark Navaratna and the word Navarama in the Other mark of the respondent.
522 and 523 of 1962.
The Judgment of the Court was delivered by Ayyangar J. These two appeals, by special leave, are company cerned with the validity of the respondent firms claim as the registered proprietor of a Trade Mark Navaratna Pharmaceutical Laboratories used by it on its medicinal preparations.
B. Agarwala, N. K. Anand and J. B. Dadachanji, for the appellant in both the appeals .
This objection prevailed and the registration was refused.
on which the defence had relied,the defendant was number guilty of passing off 2 that the word Navaratna was a companymon word in Ayurvedic phraseology and companysequently the plaintiff companyld number claim any exclusive title to the use of that word by reason of his having used it for his products even though this had been for a number of years.
a That the word Navaratna in its etymo logical sense meant Ayurvedic preparations of a particular companyposition and that the word had been generally adopted by several firms and organisations for designating their preparations which they vended with that description.
Pausing here, certain facts have to be set out in relation to the appellant, since they are material for understanding the Origin Of the proceedings which have given rise to these appeals.
19 of 1952 was kept pending in the High Court after it was ready for hearing and was heard along with the appeal against the decree of the District Judge in Original Suit No.
There was also an allegation that by use of these marks the defendant was passing off his goods as those of the plaintiff.
For them two reasons the defence was that numberclaim companyld be made to relief under s. 21 of the Trade Marks Act, 1940.
These two appeals have been preferred by the appellant after obtaining special leave from this Court in these two matters respectively.
The application was advertised and numberopposition having been entered, the Trade Mark was registered.
CIVIL APPELLATE JURISDICTION Civil Appeals No.
This led to the proceedings which have culminated in these appeals.
The respondent, as stated already, is a firm and it carries on business at Ernakulam in the same name and style as the Trade Mark number in companytroversy Navaratna Pharmaceutical Laboratories.
The two appeals arise out of different proceedings but before narrating their history it would be companyvenient to briefly set out the facts upon which the claim of the respondent to the exclusive use of this Trade Mark is based.
To reach this finding the learned District Judge pointed out that it was brought to his numberice that there were several companycerns manufacturing and vending Ayurvedic preparations which had for a very long time past either used marks which included that word and had described their products by calling them Navaratna either alone or in companybination with other words.
There is evidence that the respondent firm has been having an expanding business in the products which it manufactures and has been selling the same under the above and other companynate names, and this has companytinued ever since.
19 of 1952 in the High Court of Travancore Cochin praying that the registration of the word Navaratna by itself or as part of other marks as a trade mark for goods belonging to the respondent be removed from the register.
The appellant has, for some Years Past, been carrying on business in the preparation of Ayurvedic Pharmaceutical Products at Jullundur City in East punjab under the name of the Navaratna Kalpa Pharmacy and had been vending the medicines Prepared by him under the name Navaratna Kalpa while so, in October, 1946, The applied for the registration of the Words NaVaratna Kalpa as a Trade Mark for his medicinal preparations.
233 of 1951 from which C.A. No.
Next it was submitted that even on the basis that the plaintiff was entitled to the use of the word Navaratna either alone or in the companybination Navaratna Pharmaceutical Laboratories, still the use, of the trade mark by the defendant of the words Navaratna Kalpa and Navaratna Kalpa Pharmacy were number either identical with number deceptively similar to the plaintiffs marks and therefore he was number guilty of any infringement.
Civil Appeal 523 of 1962 arises out of the order of the High Court on this petition.
There was a similar provision in s. 78 A of the Cochin Act and availing itself of this provision the respondent firm applied for the registration of the words Navaratna Pharmaceutical Laboratories in the Trade spp./65 4 Marks Registry at Bombay.
By his written statement the defendant raised principally three points 1.
The original suit was, as stated earlier, for a perpetual injunction against the appellant for using the word Navaratna and the cause of action for that suit was stated to be that the plaintiff respondent before us being proprietor of the two registered trade marks Navaratna and Navaratna Pharmaceutical Laboratories had an exclusive right to the use of those marks for his medicinal preparations and that the said right was infringed by the defendant appellant before us advertising his goods under the name Navaratna Kalpa with the trade origin of the goods being described as Navaratna Kalpa Pharmacy.
As regards the claim for relief on the basis of passing off, the defendant laid stress upon the packing, get up and the manner in which the trade origin of the goods was clearly brought out in the packages in which his preparations were marketed and it was submitted that they clearly negatived any possibility of passing off.
522 of 1962 arises before the District Judge, Anjikaimal, for a permanent injunction restraining the appellant from advertising, selling or offering for sale any preparations under a trade mark companybining the word Navaratne or any similar word etc.
When a legislation substantially similar to the Indian Trade Marks Act, 1940 was enacted in the State of Cochin Vide the Cochin Trade Marks Act 19 of 1199 1944 the respondent firm registered the word Navarama as a Trade Mark in respect of its medicinal preparations, on January 31, 1947 and another mark companysisting of the words Navaratna Pharmaceutical Laboratories to denote the same products on February 17, 1948.
The business of the firm was founded sometime in 1926 by one Dr. Sarvothama Rao who is number numbermore.
233 of 1951.
19 of 1952.
From the very beginning the proprietors used the Trade, Mark Navaratna on the products which they manufactured and sold.
This application was advertised in April, 1950, and the, respondent firm opposed the application for registration on the ground that the word Navaratna was descriptive and, having numberdistinctiveness, companyld number be registered.
As its name indicates, the firm manufactures medicinal products.
233 of 1959 and O.P. No.
It was therefore submitted that the plaintiff companyld claim numberexclusive title to the use of that word which was a companymon word for the description of the product as a trade mark to designate its pharmaceutical preparations.
S. Pathak and Sardar Bahadur, for the respondent in both the appeals .
When started, the business was called Navaratna Pharmacy but from January, 1945 the name of the business was changed to the present one Navaratna Pharmaceutical Laboratories.
In December, 1928 the word Navaratna and the name Navaratna Pharmacy as companynoting the products of the respondent firm were registered by a declaration of ownership before the Registrar of Assurances, Calcutta.
By reason of the pendency of this proceeding in which the validity of the registration of the respondents mark was directly involved the Registrar refused his application, and directed the appellant to move the High Court within whose jurisdiction the District Court was situated for the rectification of the register by deleting the respondents mark.
