Honest concurrent user as to the trade mark "GEMCAL". Suit for permanent injunction, passing off and rendition of accounts on the basis of the prior user filed by appellant was dismissed.
HELD Both the parties have been selling products under the said mark for over two years prior to the notice sent by the plaintiff to the defendant in February 2003. The actual use by both parties has been thus almost concurrent except for the period of about three months for which the plaintiff was selling its product prior to sale by the defendant till the first notice was sent by the plaintiff to the defendant. As the mark has not been registered in the name of either party, the search in the trademark registry also did not yield any result in this regard. No instances of confusion between the products of the parties have been shown from any materials on the record. We had also seen the labels on the small boxes of the medicine manufactured by the appellant and respondent under the said mark which showed that they were visually distinct from each other. None of the parties were the registered owners of the trademark .
This clearly shows that the appellants were only creating a false image so as to marginalize and scuttle the functioning of a small time pharmaceutical manufacturer only on account of the fact that the appellant was a leading pharmaceutical company. Therefore, this contention of the learned counsel for the appellant that the respondent was not a bona fide concurrent user or that it had not taken the plea of concurrent user or that it was indulging in passing off of its pharmaceutical preparations in the name of pharmaceutical preparations of the appellant is not tenable in law.