Franco Indian Pharmaceuticals Pvt Ltd (‘Franco’) is engaged in the manufacturing of pharmaceutical preparations. One of its products is a syrup used to treat iron deficiency, and is even used as a folic acid supplement with or without Vitamin B-12. It has an orange flavour.
Franco sells the preparation under the mark DEXORANGE since 1971, i.e., for more than 50 years. Franco has a registration for the mark since January 1971 in class 05. The DEXORANGE label mark is also registered since January 1971 in class 05. Franco has a series of registrations for marks which contains the mark DEXORANGE as the most prominent, essential and leading feature.
Franco sells its product bearing the mark Dexorange in a uniquely shaped bottle that is registered as a trademark since 2009 in class 05. Franco also has registration for label used on the product sold under the mark Dexorange, bearing the colour combination of orange, black, white, and green. The mark DEXORANGE is depicted in a unique font in addition to several representational features in the colour orange are affixed on the top lid and side panels of the bottle.
Source- https://www.loyalmedicosonline.com/dexorange-syrup-200ml
We do not claim any copyright in the image used. It has been used for academic and representational purposes
In February 2021, Franco came across Micro Labs Limited’s (‘Micro’) product bearing the mark FERRI ORANGE. Franco found that the product is being marketed by Micro, an entity against whom Franco had filed a suit at the Delhi High Court at an earlier date. The case was filed because, Micro attempted to use the mark FERRI ORANGE. The suit was decreed in 2013, and a permanent injunction was granted against Micro and its then manufacturers. Damages of Rs.50,000/- were also awarded which was paid by Micro.
Micro filed an Application for the registration of FERRI ORANGE in 2011 in class 05. That application was advertised in 2016. Franco filed a notice of opposition against it. In reply to this, Micro did not file a counter-statement, and ultimately the Registrar of Trade Marks, Chennai, in 2017 ordered that the application be treated as ‘abandoned.’
Hence Franco Indian Pharmaceuticals Pvt Ltd approached[1] the Bombay High Court seeking an ex parte ad-interim injunction restraining Micro Labs Limited from infringing its trademark, vested copyright in the label, and passing of Micro’s goods as that of Franco.
The Court held that there is already a permanent injunction instituted against Micro from using the mark FERRI ORANGE vide a decree by the Delhi Court. Yet Micro persists on repeating the same offense. This helped Franco establish a prima facie case in its favour.
The Court also compared the images of the two products and held that, even one look at the contesting products ascertains that Micro’s intentions cannot be said to be bona fide. They are entirely illicit and the attempt is to encash on Franco’s reputation. There is no conceivable reason for Micro to have adopted a mark that is so structurally and visually similar to that of Franco’s.
With respect to the artistic work in the label and packaging and the shape of the bottle, the Court held that Micro’s label is substantially, if not wholly, identical to Franco’s original artistic work. Almost every prominent element is adopted.
The final nail in the coffin is the shape of the bottle, something that is unique to Franco and in which Franco has trademark rights. The dishonesty in adoption is therefore apparent including the mark to the shape of the bottle. It is inconceivable that Micro could have been unaware, given these circumstances, of Franco’s products.
Hence the balance of convenience is clearly in favour of Franco. Therefore the Court granted all three ad-interim injunctions restraining Micro from using the mark FERRI ORANGE; from using the label adopted by it and against using the shape of the bottle adopted by it.
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