13
Jun
2020
AMADAY vs. ANADAY
Delhi High Court
Ajanta Pharma Ltd. (Plaintiff) vs Zuventus Healthcare Ltd.(Defendant).
Plaintiff has filed the present suit seeking a decree of permanent injunction against the defendants, its directors, assignees, distributors, dealers, etc., restraining them from misusing the medicinal preparation under the impugned mark ANADAY or any other similar trademark which is deceptively similar to the plaintiff's trademark AMADAY amounting to infringement of its registered trademark Nos. 747783, 1305303 and 1518017.
According to the Plaintiff, Defendant’s use of ANADAY is in relation to breast cancer medication. It infringed its rights in the registered mark AMADAY in respect of medicines for the treatment of high blood pressure and heart disease.
Upon the defendant’s contention that the plaintiff does not have a license to sell their products in India and are allowed only for export purpose, Court observed that, there is no territorial restriction on the use of the mark by the Plaintiff by virtue of registration of the trade mark and also noted that the Plaintiff may, after obtaining the necessary licenses required under the relevant applicable law, sell its goods under the AMADAY mark in India. Court has also made a crucial observation that application in India of a trademark, although the goods to be exported from India, shall be deemed to constitute use of a trademark for any purpose for which such use is material under the Act or any other law. Accordingly, use of Plaintiff’s mark on the goods for the purpose to be exported outside India is relevant.
Upon, delay in filing the suit and acquiescence, court observed that delay must be weighed against the honesty in adoption of trademark by the defendant. Court said that defendant has coined their trademark ANADAY. On the context of acquiescence, court observed that the plaintiff has opposed the defendant’s trademark in the trademark registry. It stated that, despite the facts that plaintiff having the knowledge of the sales figures alleged by the defendant since the year 2008, the plaintiff did not show due diligence to enquire about the sales of goods by the defendant’s mark ANADAY in the market.
While comparing both the trademarks per se , court relied upon the honesty of adoption of defendant’s trademark, and held that Plaintiff’s mark AMADAY is used on and in relation to treatment of high blood pressure, heart disease etc., the Defendant’s mark ANADAY is used for treatment of breast cancer. Resultantly, the medical purpose remains different for both. Moreover, court also said that the sales of goods of plaintiff is outside India, while that of the defendant is in India.
Thus, court refused to pass an order of interim injunction in favour of plaintiff against use of the mark ANADAY by defendant on and in relation to breast cancer medication.
For any further queries call us on 9820680789. Mail us at info@trademark.in. Visit us on www.makhijaandassociates.com
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