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Judgment
S. Jagadeesan, J
The appeal has been directed against the order of the Deputy Registrar of Trade Marks, New Delhi dated 14.6.95. Respondent herein M/s Vets
Farma (Private) Limited filed Application No. 495270 on 1.8.88 to register the trade mark 'LEVASOL' in respect of 'veterinary-medicines' included in
class 5 of the Trade and Merchandise Marks Act, 1958 (hereinafter referred to as the Act). The said application was advertised in the Trade Marks
Journal No. 1066 dated 1.11.93 at page 785.
Ranbaxy Laboratories Limited, appellant herein filed their opposition No. DEL 8400 on 25.1.94 opposing the registration of the respondent's mark
on the ground that they are the registered proprietors of the trade mark 'LEMASOL' under Application No. 409129B in class 5 in respect of
pharmaceutical preparations for human use and the mark applied for is deceptively similar to that of the respondent and therefore the impugned mark
is not registrable under Sections 9, 11(a), 11(e), 12(1) and 18(1) of the Act. The respondent filed the counter-statement on the material averments
contained in the notice of opposition and contended that they are the proprietors of the mark applied for which is prior in adoption and user to that of
the opponents in respect of veterinary medicines and that the impugned mark is not deceptively similar to that of the appellant. Both the parties filed
their evidence and after the completion of the procedure formalities the Deputy Registrar of Trade. Marks heard the matter. Finally under the
impugned order the Deputy Registrar disallowed the opposition filed by the appellant and directed the application of the respondent to proceed for
registration. Aggrieved by the same, the appellant filed the appeal CM (M) No. 325 of 1995 on the file of High Court of Delhi, which stood transferred
to this Board pursuant to Section 100 of the Trade Marks Act, 1999.
We heard Shri A.R. Lall, learned counsel for the appellant and Shri M.R. Bhalerao, learned counsel for the first respondent. The contention of the
learned counsel for the appellant is that the Deputy Registrar had disposed the matter in a two paragraph order which clearly reveals the non-
application of mind by the concerned authority. The Deputy Registrar, being a quasi-judicial authority and his order being appealable, ought to have
given reasons for his conclusions. Absence of any reason in the order is sufficient ground for setting aside the same. Even on merits it could be seen
that both the marks are identical and similar and as such the respondent's mark is deceptively similar to that of the appellant's mark. Hence, the use of
the respondent's mark would definitely create confusion. Further, the distributing window being the same, medicine for veterinary use or human use do
not make any difference as there is every possibility of mixing up of the medicines in the pharmaceutical store. Hence, the Board may either remand
the matter to the Deputy Registrar for fresh disposal or taking into consideration the lapse of time, can dispose of the appeal on merits.
For contra, learned counsel for the respondent contended that the Deputy Registrar had specifically mentioned that the impugned mark will not
cause any confusion especially due to the reason that the respondent's medicine is for veterinary use. As the medicines manufactured by both the
parties are meant for different use, there is no possibility of confusion and overruled the objections raised by the appellant under Sections 9, 11(a),
11(e), 12(1) and 18(1) of the said Act. Further it was contended that the respondent being the earlier user, their right is to be safeguarded in terms of
Section 33 of the said Act. Hence, the appeal is liable to be dismissed.
We perused the impugned order of the Deputy Registrar. As rightly pointed out by the learned counsel for the appellant, the Deputy Registrar had
disposed the matter with the following two paragraphs:-
I have gone through the file carefully and come to the conclusion that there force in contention of the Ld. Counsel for the applicants since the
medicine for animals cannot be used for human beings and vice-versa. Therefore, I do not find and probability of confusion and deception likely to be
used amongst the purchasing public in respect of the rival marks as well as the rival goods. The applicants are also prior adopters and users of the
impugned mark.
I have gone through the file carefully and come to the conclusion that the opponents have failed to establish the grounds of opposition under Sections
9, 11(a), 11(e), 12(1) and 18(1) of the Act. I, therefore, do not prefer to consider the opponents objection in details.
From the above order of the Deputy Registrar it is clear that he had come to the conclusion that the impugned mark will not create any confusion
because the use of the goods under the impugned mark is for veterinary purpose and the purpose being a totally different one from that of the
appellant, there is no possibility of confusion. Deputy Registrar on this ground did not discuss anything in detail in respect of opposition raised by the
appellant under Sections 9, 11(a), 11(e), 12(1) and 18(1) of the Act. Though the order is liable to be set aside on the short grounds that the Deputy
Registrar has failed to discuss anything in detail, the question is whether the matter is to be remanded back or we ourselves can dispose of the same
on merits, taking into consideration of the time lag, that is, application for registration was filed in 1988. We are of the view that we ourselves can
dispose of the matter on merits instead of remitting the matter and give an opportunity for the parties for one more round which ultimately would delay
the finality in the matter.
First we will take up the issue whether the marks are identical. Appellant's mark is a registered one having brand 'LEMASOL' in class 5 for human
consumption. The respondent's mark is 'LEVASOL'. Except the third letter, rest of the letters in both the marks are the same. Hence, the question is
how far the change of third letter in the respondent's mark would differentiate their mark. When both the marks are looked side by side except the
third letter, there is absolutely no difference. Hence, for a sudden look both the marks are visually identical. Only after a careful scrutiny one can
make out the difference. Phonetically also there is not much difference. To make a difference one has to spell the word very carefully and in a
different manner. For the normal pronouncement there will be confusion as both the words are almost identical. Hence, it cannot be said that the
respondent's mark is visually and phonetically not similar to that of the appellant's mark. Though the learned counsel for the respondent emphatically
contended that the respondent's mark is not similar, he did not elaborate his argument by pointing out the dissimilarity between the two. Hence, we find
that the marks of both the appellant and the respondent are identical and same and hence there is every possibility that respondent's use of the mark
would create confusion.
Now we will consider whether a different use could solve the problem of confusion. One has to take note of the fact that both the marks are under
class 5. Appellant's mark may be for human consumption and the respondent's mark may be for veterinary consumption. But however the distributing
channel for the consumer is one and the same. When the storing place and the distributing channel being one and the same, we cannot with all
impunity rule out the possibility of confusion. We also cannot forget the fact that at the distribution centre or the distribution window only qualified
hands are dealing in the goods. When there is possibility of mixing up of the medicines, we have to be doubly careful because human value of life is
more. We do not want to refer to more judgments except the judgment of the Supreme Court in Cadila Health Care Ltd. v. Cadila Pharmaceuticals
Ltd., 2001 PTC 541 (SC) at page 560-561 in para 33 the learned Judges observed as follows:-
What is likely to cause confusion would vary from case to case. However, the appellants are right in contending that where medicinal products are
involved, the test to be applied for adjudging the violation of trade mark law may not be on a par with cases involving non-medicinal products. A
stricter approach should be adopted while applying the test to judge the possibility of confusion of one medicinal product one another by the consumer.
While confusion in the case of non-medicinal products may only cause economic loss to the plaintiff, confusion between the two medicinal products
may have disastrous effects on health and in some cases life itself. Stringent measures should be adopted especially where medicines are the
medicines of last resort as any confusion in such medicines may be fatal or could have disastrous effects. The confusion as to the identity of the
product itself could have dire effects on the public health.
The above principles laid down by the Apex Court clearly indicate the care to be taken in considering the confusion between the two medicinal
products. On the above principles if we consider the question of confusion in this case, definitely the plea of different user may not have any
significance when the distributing channel is the same. Remote possibility of confusion also must be ruled out in the case of medicinal products;
otherwise the same may be fatal to the human life. For these reasons we are unable to agree with the findings of the Deputy Registrar for disallowing
the opposition of the appellant. One more material to show the non-application of mind available in the impugned order is in the first paragraph, the
Deputy Registrar has mentioned that M/s. Vets Farma (Pvt.) Ltd. filed the notice of opposition to oppose the registration, whereas the notice of
opposition was filed by the appellant M/s Ranbaxy Laboratories Ltd. Consequently the appeal is allowed and the impugned order of the Deputy
Registrar of Trade Marks is set aside. The opposition of the appellant DEL 8400 is allowed and the application No. 495270 in class 5 of the
respondent shall stand rejected.