Universal Pharmaceutical Ltd. and another Vs. Social Marketing Company, 50 DLR (AD) (1998) 92

Case No: Civil Petition for Leave to Appeal No. 438 of 1997

Judge: Mustafa Kamal ,

Court: Appellate Division ,,

Advocate: Syed Ishtiaq Ahmed,Khondker Mahbubuddin Ahmed,,

Citation: 50 DLR (AD) (1998) 92

Case Year: 1998

Appellant: Universal Pharmaceutical Ltd.

Respondent: Social Marketing Company

Subject: Trade Mark, Intellectual Property,

Delivery Date: 1997-6-3

 
Supreme Court
Appellate Division
(Civil)
 
Present:
ATM Afzal, CJ.
Mustafa Kamal, J.
Latifur Rahman, J. 
Md. Abdur Rouf, J.      
Bimalendu Bikash Roy Choudhury, J.
 
Universal Pharmaceutical Ltd. and another
……….………..Petitioners
Vs.
Social Marketing Company
………………..Respondent
 
Judgment
June 3, 1997.  
 
The Trade Marks Act, 1940
Section 73
The Code of Civil Procedure, 1908
Order XXXIX, Rule 1
Interlocutory orders are based on prima facie findings upon the materials produced before the Courts at the time of hearing of such matters and upon satisfaction of the Court that the plaintiff has been able to establish prima facie arguable case in its favour. Such findings are not binding on the trial court which will decide the matter on merit after taking evidence and without taking into consideration any prima facie finding or observation made in the interlocutory orders……………….(7)
 
Lawyers Involved: 
Khandker Mahbubuddin Ahmed, Senior Advocate, (Mahbubey Alam, Advocate with him), instructed by Md. Zahangir, Advocate-on-Record - For the Petitioners. 
Syed Ishtiaque Ahmed, Senior Advocate, (Syed Shahid Hossain, Advocate with him), instructed by Md. Nawab Ali, Advocate-on-Record - For the Respondent.  
 
Civil Petition for Leave to Appeal No. 438 of 1997
 
JUDGMENT
 
Mustafa Kamal J.
 
             The plaintiff-respondent, Social Marketing Company, whose product is “ORSALINE”, filed Title Suit No.22 of 1995 under section 73 of the Trade Marks Act, 1940 before the District Judge, Dhaka for permanent injunction restraining the defendant-petitioners, Universal Pharmaceutical Ltd., from marketing and selling their product using the trade mark “ORALSALINE” and to withdraw all products of them from the market and also for a decree for compensation. On 1-4-95 an order of ad interim injunction was granted on the prayer of the plaintiff-respondent by the Additional District Judge, 6th Court, Dhaka where the Suit is pending, restraining the petitioners from marketing and selling their product “ORALSALINE”. The order of ad interim injunction was made absolute on contest on 14-11-95 directing the petitioners not to use the trade mark “ORALSALINE” or any other trade mark nearer or resembling the trade mark of the plaintiff- respondent which is “ORSALINE” till disposal of the suit.
 
2. Against the said judgment and order dated 14-11-95 the defendant-petitioners preferred FMA No.24 of 1996 and a learned Single Judge of the High Court Division by judgment and order dated 7-4-97 dismissed the appeal and also discharged the connected Rule. 
 
3. The defendant-petitioners have preferred this petition for leave to appeal from the aforesaid judgment and order of the High Court Division. 
 
4. Khandker Mahbubuddin Ahmed, learned Counsel for the defendant-petitioners, submits that the defendant-petitioners had earlier filed Other Suit No.78 of 1994 against the plaintiff-respondent in the 1st Court of Subordinate Judge, Pabna on declaration that “ORALSALINE” or “ORSALINE” are not similar and identical. On the application of the petitioners as plaintiffs, an order was passed by the learned Subordinate Judge, Pabna directing the parties to maintain status quo in respect of marketing and selling of the products of both parties. The said suit is still pending and the order of status quo subsists. Now a contradictory order has passed in another suit and the High Court Division erred in law in maintaining the order of injunction passed by the learned Additional District Judge without considering that two contradictory orders will lead to anomalies. 
 
5. The learned Judge of the High Court Division found that the plaintiff-respondent has rightly invoked the jurisdiction of the learned District Judge under section 73 of the Trade Marks Act, 1940 which is a special law and will prevail over the general law in so far as the subject matters under the Trade Marks Act, 1940 are concerned. As such, the learned Single Judge rightly held that the Court of the Subordinate Judge, Pabna, being inferior to the court of the Additional District Judge, Dhaka, the order of status quo passed by the learned Subordinate Judge is not legally necessary to be protected. Section 73 of the Trade Marks Act, 1940 clearly provides that no suit for the infringement of a trade mark or otherwise relating to any right in a trade mark shall be instituted any Court inferior to a District Court having jurisdiction to try the suit. 
 
6. Khandker Mahbubuddin Ahmed next submits that the finding of the Additional District Judge and the High Court Division is that the trade mark ‘ORSALINE and “ORALSALINE” are phonetically and visually similar and the same may create confusion and deception among the customers. This finding, he submits, is not substantial as it touches upon the merit of the suit in deciding an interlocutory matter and this issue cannot be decided without taking evidence of consumers who are allegedly deceived. 
 
7. Again, we do not find any merit in the submission because all interlocutory orders are based on prima facie findings upon the materials produced before the Courts at the time of hearing of interlocutory matters and upon satisfaction of the Courts that the plaintiffs have been able to establish prima facie arguable case in their favour. These findings are not binding on the trial Court which will decide the matter on merit after taking evidence and without taking into consideration, any prima facie findings or observations made in the interlocutory orders. 
 
8. Khandker Mahbubuddin Ahmed submits next that the plaintiff-respondent having claimed a certain amount as monetary compensation in the suit the Courts below committed an error of law in passing an order of temporary injunction.  
 
9. The plaintiff-respondent claimed damage in the suit at the rate of Taka 3,50,000.00 per month from November, 1994 till recovery or the amount bend by the Court on trial. Three years have passed by since the suit was filed. If the plaintiff is found entitled to compensation at the rate asked for it will reach an astronomical amount and therefore it is poor defence to say that money relief will be adequate for plaintiff. If the Courts are prima facie satisfied that there has been a prima facie infringement of the plaintiff’s copyright, the Courts will come to the aid of the plaintiff to protect its copyright. 
 
We do not find any ground for interference. 
 
The petition is dismissed. 
 
Ed.