1990 (4) TMI 280 - SUPREME COURT

Whether there is a prima facie case on which Antox could be held entitled to restrain Wander Ltd. and Alfred Berg from manufacturing and marketing goods under the Trade name Cal-De-Ce?

Whether on considerations of balance of convenience and comparative hardship a temporary injunction should issue?

Held that:- The Drug Controller's licence claimed by Antox as the source of its right to the user of the trade-mark, itself expressly stipulates that the goods to be manufactured pursuant to the said licence shall be goods under the registered Trade-mark, of Wander Ltd. The effect of this on the quality of the user has not been examined by the Appellate-Bench.

Even if a prior registration of a Trade mark is not necessarily evidence of prior user as contended by Sri Raa, Antox cannot, prima facie, explain how in a passing-off action its user subsequent to June 1986 would prevail over the prima facie finding that Wander Ltd. was manufacturing Calcium Gluconate Tablets under the trade-mark Cal-De-Ce at its own factory in Bombay from August 1983 to June 1986. The Appellate Bench does not dislodge this finding nor does it recognise the crucial effect of prior use by the defendant on the plaintiff's case in a passing-off action. It appears to us that it was not an appropriate case where the appellate Bench could have interfered with the discretion exercised by the learned Single, Judge. Allow these appeals