9911796707
TMI Blog1967 (12) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... the Learned Judge (Srinivasan, J.) in allowing the Writ, we think that it is sufficient if we focus attention upon the only issue that arises for our determination. 2.The facts are not in dispute. Eucalyptus oil is a pharmaceutical preparation, under the Indian Pharmacopoeia, and it is not the exclusive product of any individual proprietor. We have no doubt whatever that, if any person attempts to obtain a proprietary right in the words "Eucalyptus Oil" under the Law of Trade Marks, he will fail. But, persons like the writ petitioner (here respondent) do purchase eucalyptus oil in bulk, and market the product by repacking it in small and convenient bottles. The respondent has a licence under the Drugs Act for this purpose. As the Learned J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first blush, that there is no question here of any label, design or signature, used on the bottles of the respondent, being associated with the respondent as 'distinctive' within the meaning of the Law of Trade Marks. It could be argued that Eucalyptus oil (Indian Pharmacopoeia) is a standard product common to the pharmaceutical trade, and not the exclusive property of any manufacturer whatever. Indeed, that has never been in dispute. Under those circumstances, it could be further argued that anyone merely bottling and selling a standard product, even if he used his own labels, is not setting up any trade connection between the product and himself for the simple reason that the product is common to the pharmaceutical business. But this ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is a picture of the dealer set in an oval frame, and that there is also his signature. Under these circumstances, there can be no doubt whatever that the label includes elements which are distinctive of the respondent, and which may very well come to be associated in the public mind with the product marketed by him. The learned Judge, on this vital aspect, observed as follows : "When the eucalyptus oil as produced by A, B or C is not different and can be no different from each other, does the use of the dealer's name on the label establish a connection such as contemplated in the explanation? The connection should be one in the course of trade. It is not an ordinary specious connection. What is obviously required is that when the name o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a connection between that label, and the quality of the oil marketed by that dealer. We are unable to follow the learned Judge in his observations that though there is a connection, on the label, it did not "appear to be sufficient". The label attempts a very clear connection between the eucalyptus oil packed in the bottles of the respondent, and his photograph, signature and name. Certainly, that is a connection sought to be established in the course of trade, and we have reason whatever to assume that it could not have been established when the levy was made. 8.There is one possible argument, namely, that the levy was made so immediately after the respondent began affixing the labels to the bottles, that no connection in the course of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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