Fleming India v. Ambalal Sarabhai Enterprises — 1989 DIGILAW 160 (MAD)

JUDGMENT Abdul Hadi, J. 1. These suits, C.S. Nos. 1143 to 1149 of 1988 and C.S. No. 1220 of 1988 are actions in passing off in trade marks. C.S. No. 1143 of 1988 is by the firm Fleming (India) Bangalore against Ambalal Sarabhai Enterprises Ltd., Gujarat and the 2nd defendant M. Apotheke (P) Ltd., Bangalore. C.S. Nos. 1144, 1145, 1146 and 1148 of 1988 are by the same plaintiff against the above said Ambalal Sarabhai Enterprises Ltd. Only. C.S. Nos. 1147 and 1149 of 1988 are by Antox India (P)Ltd., Bangalore, a sister concern of the above said Fleming (India) against the above said defendant Ambalal Sarabhai Enterprises Ltd. only. The above said Ambalal Sarabhai Enterprises Ltd. is a drug and pharmaceutical manufacturer and has divisions as Sarabhai Chemicals, S.G. Pharmaceuticals, etc, C.S. Nos. 1220 of 1988 is by the above said Antox India (P) Ltd., against the first defendant Wander Limited, Bombay and the 2nd defendant Alfred Berg & Company (I) Private Limited, Madras. 2. In these eight suits, the plaintiffs' main allegation is that the respective defendants are passing off the latter's respective eight drugs as the respective plaintiffs' drugs using the respective eight trade marks of the respective plaintiffs. The said trade marks are "Curaminth", "Dysonac", "Hexathane", "Synamox", "Depsodiaz", "Ganrillon-R", "Brokine-G" and "Cal-De-Ce" respectively. On that basis, a permanent injunction restraining the defendants from manufacturing, selling, etc., those goods, using the respective trade marks and consequential reliefs are sought for. 3. In C.S. No. 1143 of 1988 the further allegation is that the 1st defendant has allowed the 2nd defendant to manufacture the drug in question. In C.S. No. 1220 of 1988, likewise, the further allegation is that the 1st defendant has entered into an arrangement with the 2nd defendant similar to the one earlier entered into with the plaintiff in 1986 and allowed the 2nd defendant to manufacture the drug in question. 4. In each of the first seven suits, the respective plaintiffs have also filed Application Nos. 4677 to 4683 of 1988, praying for similar temporary injunctions pending disposal of the respective suits and by order dated 8-9-1988 ex-parte interim injunctions were granted. To vacate the said respective interim injunctions, the defendant Ambalal Sarabhai Enterprises Ltd. filed Application Nos. 5078 to 5084 of 1988 in the respective suits on 27.9.1988. 5. 4677 to 4683 of 1988, praying for similar temporary injunctions pending disposal of the respective suits and by order dated 8-9-1988 ex-parte interim injunctions were granted. To vacate the said respective interim injunctions, the defendant Ambalal Sarabhai Enterprises Ltd. filed Application Nos. 5078 to 5084 of 1988 in the respective suits on 27.9.1988. 5. In C.S. No. 1220 of 1988 also, the plaintiff Antox India (P) Ltd., filed Application Nos. 4941 and 4942 of 1988, seeking similar temporary injunctions and in those two Applications ex-parte order of injunction was granted by order dated 23.9.1988. To vacate the said interim injunction granted in both these applications, the 1st defendant Wander Ltd. filed Application No. 5352 of 1988 on 10.10.1988. 6. As all these applications involve substantially common questions of law and facts, they have been taken together and disposed of by this common order. 7. In the first place, however, the applications in the first batch of seven cases, namely, C.S. Nos. 1143 to 1149 of 1988 are taken up for consideration and many of the discussions and reasonings in this batch would also apply to the applications in the latter C.S. No. 1220 of 1988. As could be seen from several original affidavits, counter affidavits, reply affidavits, additional reply affidavits and rejoinder affidavits filed, the pleadings are quite profuse enough and though; they are not set out here separately, it is clear from the plaints and original affidavits filed on behalf of the plaintiffs applicants, that neither the plaintiff Fleming (India) nor the plaintiff Antox India (P) Ltd. has stated that it was or has been the owner of the respective trade marks. In the said original affidavits it was only stated that the plaintiff had acquired the right "by continuous user". The original affidavits also admit that in 1980 itself the defendant Ambalal Sarabhai Enterprises Ltd. claimed to be the owner. To the allegation in the counter affidavits of the said defendant that it coined and adopted the said trade marks, there is no denial in the reply affidavit. On the other hand, the said reply affidavit only admitted that the said defendant conceived the said trade marks. Further, for example, paragraph 10 of the counter affidavit in C.S. No. 1144 of 1988 stated as follows: In the said labels and cartons me applicant-defendant is stated as the owner of the trade mark Dysonac... On the other hand, the said reply affidavit only admitted that the said defendant conceived the said trade marks. Further, for example, paragraph 10 of the counter affidavit in C.S. No. 1144 of 1988 stated as follows: In the said labels and cartons me applicant-defendant is stated as the owner of the trade mark Dysonac... To this there is no denial at all in the corresponding reply affidavit of the plaintiff. 8. In the plaints in C.S. No. 1143, 1146 and 1148 of 1988 also, though the agreement dated 29-10-1980 between the plaintiff and the 1st defendant is referred to, the important clauses therein affecting the rights of the plaintiff are not disclosed, though it is stated that the main objective of the above agreement was to enable the plaintiff, which was in its initial stage of business to avail of the defendants' highly organised marketing infrastructure. Clauses 3, 12,13,14,16 and 18 therein bring out clearly that the owner of the trade marks in those suits is the defendant Ambalal Sarabhai Enterprises Limited. Particularly Clause 14 of the said agreement even says that the plaintiff acknowledged the exclusive rights of the defendant over the said trade marks and the plaintiff shall not dispute the same. Further though Clause 12 says that the plaintiff agrees to execute with the defendant a registered usership agreement, if so necessary, and apply jointly with the defendant for registration of the plaintiff as registered user thereof, such an agreement was admittedly not entered into. 9. Further though Clause 12 says that the plaintiff agrees to execute with the defendant a registered usership agreement, if so necessary, and apply jointly with the defendant for registration of the plaintiff as registered user thereof, such an agreement was admittedly not entered into. 9. The said agreement in its preamble also stated as follows: AND WHEREAS SARABHAI CHEMICALS has, through many years of scientific research and development in the course of its business as manufacturer of drugs, chemicals, Pharmaceuticals and formulations of pharmaceutical preparations acquired and is possessed of secret techniques, formulas, processes, standard specifications and requirement of receipts, know how and other secret technical and confidential information and data (all which is hereinafter for brevity's sake referred to as 'know how') relating to the manufacture of products listed in the annexure hereto (hereinafter collectively referred to as 'the said products') AND WHEREAS Fleming is desirous of manufacturing the said products at its factory premises at Bangalore, AND WHEREAS Fleming has requested Sarabhai Chemicals to disclose to it the know how to enable Fleming to manufacture the said products in accordance therewith, AND WHEREAS Fleming has represented and warranted that it is a small scale unit possessing idle manufacturing capacity and has the necessary labour personnel, plant machinery and facilities required for the manufacture of the said products in accordance with the know how, 10. Even in the letter dated 15.3,1986 written by the said defendant to the Drugs Controller, Karnataka which is relied on by the learned Counsel for the plaintiff, it is clearly stated as follows: "Dysonac" is our trade mark and we authorise M/s. Fleming (India) Private Limited, Bangalore to use this mark Dysonac for the Dysonac tablets. So, it is clear that the owner of the trade mark in question is only the said defendant and it has only permitted the plaintiff to use the said trade mark. It goes without saying that this permission was only the above said agreement between the plaintiff and the 1st defendant. So, even though the same letter says that the said defendant was not manufacturing the said product which are manufactured by the plaintiff under the 1st defendant's trade mark "Dysonac", this statement of the defendant is only to enable the plaintiff to get the licence from the Drug Controller pursuant to the said agreement between the plaintiff and the 1st defendant. This does not mean that the 1st defendant has completely surrendered its right in the mark for ever. It can at any time revoke the permission granted to the plaintiff pursuant to the said agreement. 11. In this connection, in view of what is stated above, the decision, Lavergne and Anr. v. Hooper I.L.R. 8 Mad. 149 and cited by the learned Counsel for the plaintiff has no application to the facts of the present case. In the said case, the plaintiffs by their conduct led the defendant to believe that they claimed no right to a certain trade-mark and that it was open to the defendant to adopt it as his own. But in the present case by virtue of the above said letter dated 15.3.1986 the 1st defendant herein did not stale that it claimed no right to the trade mark in question, nor it said that it was open to the plaintiff to adopt the said trade mark as its own therefore, the said decision has ho application to the present case. 12. Further the plaintiff Fleming (India), by its letter dated 30.3.1982 addressed to the defendant Ambalal Sarabhai Enterprises Ltd., categorically admitted that the drugs in question are manufactured by it for the said defendant. No doubt, by this letter, the plaintiff wanted approval for manufacturing its own products, 20 drugs in number, which are different from the drugs manufactured under the suit trade marks. Since those drugs are different from the suit drugs, the plaintiff describes the former as "our own products," that is, plaintiffs own products. Even with reference to the manufacture of those drugs, it is significant to note the plaintiff sought permission in the said letter thus: We would be grateful if we could have a formal approval for going ahead with our marketing programme, including the product selection. This permission is sought for, so as to assure the said defendant that there was no competing interests. It is in this connection, the above said admission with reference to the suit drugs is made by the plaintiff as follows: ...such that there is no direct competing interest with the range of products manufactured by us for yourselves. (emphasis is mine) To this letter the said defendant has sent a reply dated 8-5-1952, giving the approval sought for, after ascertaining that those 20 drugs are not suit drugs. (emphasis is mine) To this letter the said defendant has sent a reply dated 8-5-1952, giving the approval sought for, after ascertaining that those 20 drugs are not suit drugs. The necessary allegations with reference to this aspect are made in the counter affidavit of the defendant, but, there is no denial of those allegations nor is there any clarificatory explanations, in the reply affidavits and additional reply affidavits filed by the plaintiff. 13. In this connection, the letter dated 30-1-1984 of the plaintiff addressed to the defendant with reference to the trade mark "Hexathane" is also significant. Here too the plaintiff Fleming. (India) admits that the said trade mark is that of the said defendant. The letter runs thus: We thank you for your trade name permission letter...dated 16.1.1984 for using your trade name "HEXATHANE" (emphasis is mine) 14. Another letter dated 24.10.1984 written by the plaintiff Fleming (India) to the Senior Inspector, Weights and Measures is also significant. There too, the plaintiff admits that the product in question is being manufactured by it on behalf of Sarabhai Chemicals. (This' Sarabhai Chemicals' is only a division of the defendant Ambalal Sarabhai Enterprises Ltd. as stated in paragraph above) 15. Though an agreement similar to the above said agreement dated 29.10.1980 was not specifically entered into in the other four suits, C.S. Nos. l 144, 1145, 1147 and 1149 of 1988, it is fairly clear from the averments in the affidavits that the terms of the said agreement dated 29.10.1980 apply to the said other four cases also. For example, to many specific averments in paragraphs 12 to 14 of the counter affidavits in C.S. Nos. 1147 and 1149 of 1988 there no specific denials at all in the reply affidavits of the plaintiff; particularly to the following allegation in the end of paragraph 13 of the said counter affidavits, there is no denial: Therefore the arrangement/agreement that subsisted between the applicant/defendant and Fleming (India) was also adopted by Antox India Private Ltd. and the applicant/defendant. Likewise, for many specific allegations in paragraphs 9 to 12 of the counter affidavits in C.S. Nos. 1144 and 1145 of 1988 also, there are no specific denials in the corresponding reply affidavits of the plaintiff, (In this connection Vide paragraphs 11 and 12 of the said reply affidavits) 16. Likewise, for many specific allegations in paragraphs 9 to 12 of the counter affidavits in C.S. Nos. 1144 and 1145 of 1988 also, there are no specific denials in the corresponding reply affidavits of the plaintiff, (In this connection Vide paragraphs 11 and 12 of the said reply affidavits) 16. It is also clear from the correspondences passed between the parties that even before the above said formal execution of the agreement in October, 1980, there was some sort of an agreement between the parties even some months earlier, or at least it can be said that even earlier to the agreement in October, 1980 negotiations between the parties for fixing up of the necessary terms of the said agreement were going on, though in principle the agreement by which the defendant authorised the plaintiff to the above said manufacture, came into being. This is borne out by documents dated 18-1-1980, 5-3-1980, 6-3-1980, 9-6-1980, 14-6-1980, 11-9-1980, 26-9-1980 and 22-10-1980, the copies of which are given in the consolidated type set of documents of the defendant 17. Though the above said agreement strictly expired in 1983, the conduct of parties and several documents established that the said agreement continued beyond October, 1983 In the plaint itself it is stated that the above said agreement came to an end by 1983, but that even after the expiry of the contract, the plaintiff continued to manufacture the same and supplied the same to the defendant Sarabhai during the years 1983 to 1988. 18. The above said agreement in question is neither an user agreement, nor a licensed user agreement, nor a registered user agreement. It only says that the plaintiff agrees to execute with the defendant a registered usership agreement "if so necessary" and apply jointly with the defendant for registration. It is only a manufacturing agreement, which stipulates that the plaintiff has no right to sell goods with the defendant Sarabhai's trade marks to any party other than the defendants. In an user/licensed user/registered user agreement, a third party is allowed to sell the products bearing the marks owned by another, on his own account, which is not the case here. 19. The learned Counsel for the plaintiff relied on the decision K.R. Beri & Co. v. Methal Goods Mfg. Co. In an user/licensed user/registered user agreement, a third party is allowed to sell the products bearing the marks owned by another, on his own account, which is not the case here. 19. The learned Counsel for the plaintiff relied on the decision K.R. Beri & Co. v. Methal Goods Mfg. Co. Pvt. Ltd. where it was held that use of trade mark by unregistered user is of no avail to proprietor for purpose of Section 46 of the Trade and Merchandise Mark Act. Section 48(2) therein provides an exception in case of permitted use of trade mark being deemed to be used by the proprietor and shall be deemed not to be used by a person other than the proprietor for the purpose of Section 46. The result is that if a registered user has used the trade mark, ground for removing the trade mark from register on the ground of non-user ceases to be available. In the same decision it was also held that it was an advantage given to a proprietor, but only in case of permitted use by the registered user, and that without the use by a registered user of the trade mark, use by any other person even when it is with the proprietor's consent, cannot be equated to use by the proprietor. But this decision or the above said provisions are not applicable to the present case. The agreement in question in the present case is not an user agreement or a licensed user agreement or a registered user agreement It is only a manufacturing agreement, which stipulates that the plaintiff has no right to sell the goods marked by the 1st defendant's trade marks, to any party other than the 1st defendant In an user/licensed user/registered user, agreement, the third party is allowed to sell the products bearing the marks owned by another, on his own account, which is not the case here. As stated above, the above said Clause 12 of the agreement states that a registered user agreement will be executed, if necessary. This further proves that this agreement is not an user agreement, but only a manufacturing agreement. Therefore, Section 46 or 48 or 49 or the above said decision is not applicable to the present case. As stated above, the above said Clause 12 of the agreement states that a registered user agreement will be executed, if necessary. This further proves that this agreement is not an user agreement, but only a manufacturing agreement. Therefore, Section 46 or 48 or 49 or the above said decision is not applicable to the present case. In fact in American Home Products Corporation v. Mac Laboratories Pvt. Ltd. it has been held that for removal of a trade mark from register under Section 46(1)(a), not only non-user of trade mark for requisite period but also absence of bona fide intention to use. at the time of application for registration has to be proved, and that the intention to use the trade mark takes in not only proposed user by proprietor but user through registered user also. In the present case, the above referred to agreement between the parties specifically provides that, if necessary, registered user agreement could be executed between the parties. So, it cannot be said that there was no intention on the part of the defendant Ambalal Sarabhai to use the trade mark by itself or through registered user. 20. In the above decision it is also observed that to get a trade mark registered without any intention to use it in relation to any goods, but merely to make money out of it by selling to other the right to use it, would be trafficking in that trade mark and the Supreme Court pointed out with approval, following observations in English cases: Trafficking must involve trading in or dealing with the trade mark for money or monies worth, but it is not all dealing with trade mark for money that is objectionable since it has always been accepted that it is permissible to sell a trade mark together with the goodwill of a business, in the course of which the trade mark has been used. At any rate, there is no trafficking in trade mark by the 1st defendant in the present case. 21. The learned Counsel for the 1st defendant brought to my notice another decision rendered by this Court in Mohan Gold water Breweries (Private) Limited v. Khoday Distilleries Private Limited (1977) I P.L.R. 83. At any rate, there is no trafficking in trade mark by the 1st defendant in the present case. 21. The learned Counsel for the 1st defendant brought to my notice another decision rendered by this Court in Mohan Gold water Breweries (Private) Limited v. Khoday Distilleries Private Limited (1977) I P.L.R. 83. There, while the applicants were first to adopt and apply for registration of the trade mark, the opponents were first to use the same trade mark, this Court held as follows: ...once an application for registration of a mark is made by a person who has proposed to use a mark devised by him, all persons who happen to use that mark thereafter, bona fide or not, will only be taking a risk and therefore, their user cannot stand in the way of the applicant's prosecuting his application for registration. 22. It has also been held in Bhikusa Yamasa Kshatriya Private Limited v. Jagannath Bhikusa Kshatriya and Ors. suit for passing off postulates that with regard to the mark in issue, the defendant who is not concerned with the trade mark of the plaintiff is charged with the use of the same in a deceitful manner, having no entitlement whatsoever to such use. It has been further held there that "passing off cannot be answered unless there is an element of deceit in the use of the trade mark." In the said Bombay case, a person who is admittedly owner of a given trade mark, assigned the rights of its use under an agreement. When he resorted later to the use of such a trade mark in breach of the agreement, it was held that he would not be the person who would be passing of the trade mark of the other person. In the present case, also, the grievance of the plaintiff is that the defendant Ambalal Sarabhai Enterprises Ltd., is recently manufacturing by itself or through another, the drugs in question, using the relevant trade marks in question and thereby is trying to pass off its goods as the plaintiffs goods. Here also under the above said agreements in question, the plaintiff was permitted to use the relevant trade marks belonging to the said defendant in manufacturing the drugs in question. Here also under the above said agreements in question, the plaintiff was permitted to use the relevant trade marks belonging to the said defendant in manufacturing the drugs in question. So, applying the same principle laid down in the above case, there can be no passing off by the defendant In the above said Bombay case the assignor resorted to the use of the trade mark in breach of the agreement and yet the Court held that there was no element of deceit in the use of the trade mark by the said assignor. The present case is a still stronger case for the above said defendant Ambalal Sarabhai Enterprises Ltd. because the using of the trade marks in question by the said defendant pursuant to the licence it got from the Drug Controller, Gujarat cannot be said to be contrary to the above said agreements it entered into with the plaintiff. Whatever it is, since there is no element of deceit, the questions of passing off will not arise. 23. The plaintiffs further contention is that the agreement also violates Section 23 of the Contract Act But having acted so far, all these years pursuant to the above said agreement of 1980, the plaintiff cannot now come and say at the interlocutory stage that the said agreement is illegal or void. 24. At this interlocutory stage, I cannot go into the question whether the above said agreement between the plaintiff and the 1st defendant is valid or not. More so because, the present action is a mere passing off action and not an action for a declaration that the above said manufacturing agreement is invalid. So, I need not consider the decisions referred to by the learned Counsel for the plaintiff reported in State of Bihar v. J.A.C. Saldanna and Gopalakrishnan, In re. 1969 L.W. (Crl.) 51 25. In the light of the above said agreement and the conduct of the parties all these years as shown by several documents, it could be safely held at least for the purpose of deciding these interlocutory applications that the 1st defendant has a right of its own to use the above said trade marks, If so, that will be one of the valid defences to this action for passing off. (Vide Paragraph 1372 Narayanan's "Trade Mark & Passing Off, 3rd Edition) 26. (Vide Paragraph 1372 Narayanan's "Trade Mark & Passing Off, 3rd Edition) 26. The following averments in the counter affidavits of the defendant are also not denied by the plaintiff in its reply affidavits:- Throughout the period of manufacture, the plaintiff not only acknowledged the said trade marks as belonging to the said defendant, but has also been using the words "manufactured in connection with Sarabhai Chemicals". The whole labels and cartons contain the said defendant's house marks "Sarabhai." The name of the plaintiff appearing on the cartons and labels of the products in question appearing in a very small size, compared to the size used of the name Sarabhai Chemicals. The colour, scheme and get up of the labels and cartons are the same as used by the said defendant in many other products, not covered by this agreement. The said defendant made sustained efforts through its net work of field force, distribution channels and other promotional efforts involving considerable amount of expenditure to market and promote products bearing the above said trade marks. The plaintiff had, at no time, any right to sell or had sold the above said products to any party other than the said defendant The said defendant by its letters, no doubt withdrew the permission granted to the plaintiff to manufacture on the said trade mark. If the plaintiff succeeds in the suit, it can always have damages, but if the said defendants succeeds, it will not be in a position to recover damages caused by virtue of any injunction given, since the plaintiff itself has admitted that it is in financial difficulties. 27. In the circumstances, I am of the view that the plaintiff, in these suits, has not made out a prima facie case for passing off. It is true that the plaintiff has been applying the relevant trade mark to the goods manufactured by them. But such application is not to indicate the manufacture, but to indicate the connection with the defendant as the statement on the labels prove. This is also made clear by the terms of the above said agreement signed by the plaintiff and the defendant. It is true that doctors prescribe and the consumers approach the drugs by their trade mark. But such application is not to indicate the manufacture, but to indicate the connection with the defendant as the statement on the labels prove. This is also made clear by the terms of the above said agreement signed by the plaintiff and the defendant. It is true that doctors prescribe and the consumers approach the drugs by their trade mark. They will know from the labels that the trade marks applied to the drug in question belongs to the defendant They will further know that the drugs are manufactured by the plaintiff, that too, in co-operation with the defendant, if they cared to look at the labels carefully. Since the doctors and consumers have already identified the trade mark/ as belonging to the said defendant, it will not lead to misrepresentation or confusion. All the past users have consistently identified the trade marks as belonging to the defendant. 28. The grant of temporary injunction being governed by equitable principles, the Court would refuse to interfere summarily by such relief, notwithstanding the plaintiff's alleged legal rights, unless its conduct in the matter is free from blame, there is no estoppel by acquiescence by the plaintiff and there are no latches on the part of the plaintiff. The test of acquiescence required to disentitle the plaintiff to an interim injunction need not be also so strong as is necessary for the refusal of a perpetual injunction at the hearing. Speaking about acquiescence, in Gorden v. Cheltenham and V.W.U. Railway Company 5 Beav 229 Lord Langdale observed as follows: A short acquiescence may properly induce the Court not to interfere ex-parte. The longer acquiescence may, under the circumstances, throw serious doubt upon the right of the plaintiff, and induce the Court not to interfere by any interlocutory order even when applied for on notice. 29. The learned Counsel for the 1st defendant also pointed out the latches on the part of the plaintiff. He bought to my notice one letter dated 3-3-1987 written by plaintiff Fleming (India) to the 1st defendant, which shows that the plaintiff himself admits that major products were withdrawn from (plaintiff) like "Synamix Depsodiaz". Thus prior to 3-3-1987 the permission given to the plaintiff for manufacturing the suit products, or atleast many of them, was withdrawn and the plaintiff has not chosen to take any action immediately, but has come forward with the suits only in September, 1988. 30. Thus prior to 3-3-1987 the permission given to the plaintiff for manufacturing the suit products, or atleast many of them, was withdrawn and the plaintiff has not chosen to take any action immediately, but has come forward with the suits only in September, 1988. 30. Further, in order to justify the issue of an injunction, one of the several conditions to be satisfied is that the conduct of the plaintiff has not been blame-worthy, because the relief by way of injunction is an equitable relief. Since in the present case the plaintiff did not disclose in the plaints or affidavits the various important clauses the above said agreement which would clearly bring out that the defendant Ambalal Sarabhai is the exclusive owner of the respective trade marks and that the plaintiff shall not dispute the said exclusive rights. In Clause 18 thereof the plaintiff has given even an undertaking to stop using the relevant trade mark "with immediate effect" on termination of the said agreement/for 3 years- from 1980. Suppressing these material particulars, the plaintiff has filed these suits and sought for temporary injunctions too. So also the plaintiff is disentitled to the temporary injunctions sought for and therefore, the ex-parte temporary injunctions already granted should be vacated. 31. In this connection another aspect of the plaintiff's conduct may also be seen. Despite the above said longer acquiescence for several years right from 1980, the plaintiff has now gone even to the extent of alleging that the defendant Ambalal Sarabhai, if it manufactures the above said drugs under the above said respective trade marks, it would be manufacturing only "spurious drugs" as per Section 17B (a) of the Drugs and Cosmetics Act, 1940. Section 17B(a) runs thus: For the purpose of this chapter, a drug shall be deemed to be spurious - (a) If it is manufactured under a name which belongs to another drug; No doubt in 4 out of 7 cases herein, the defendant Ambalal Sarabhai Enterprises Ltd. recently obtained licence from the Drug Controller, Gujarat to manufacture the respective 4 drug under the respective trade marks for sale. But the legality of the licences obtained from the Gujarat Drug Controller as against the licences give to the plaintiff by the Drug Controller, Karnataka cannot be questioned in this proceeding which is an action for passing off. But the legality of the licences obtained from the Gujarat Drug Controller as against the licences give to the plaintiff by the Drug Controller, Karnataka cannot be questioned in this proceeding which is an action for passing off. That could be gone into, if any rectification proceeding is filed before the Drug Controller. So, I cannot consider particularly at this interlocutory stage, in this passing off action whether the defendant Ambalal Sarabhai Enterprises Ltd. would be manufacturing "spurious drugs" under Section 17B pursuant to the licence given by the Drug Controller, Gujarat. Likewise, in this passing off action I cannot consider whether the defendant Sarabhai, in using the above said trade marks, will violate Industries (Development and Regulation) Act, 1951. 32. If according to the plaintiff, the 1st defendant has violated any enactment and for which it could be punished, the plaintiff could bring the alleged violations before the relevant authorities for necessary action. 33. Further it has also been held that relief by way of an injunction will not be granted in trade mark cases, if the plaintiffs own conduct has led to a state of things, of which he now complains Vide Modi Sugar Mills Ltd. v. Tata Oil Company Ltd. A.I.R. 1943 Lahore 196. 34. There is no prima facie case in favour of the plaintiff. Even assuming it is there, the balance of convenience is in favour of the defendant Ambalal Sarabhai Enterprises Ltd. If the plaintiff succeeds in the suit, it can always have damages from the defendant Ambalal Sarabhai Enterprises Ltd. as the latter is admittedly a leading drugs and pharmaceutical manufacturer, whose turnover is over rupees 150 crores per annum. But, if the said defendant succeeds, it will not be in a position to recover damages caused by virtue of any injunction given since the plaintiff itself has admitted that it is in financial difficulties, as shown by the plaintiffs letter dated 3-3-1987 to the 1st defendant. Further, it should be noted that the plaintiff is not depending entirely on the suit product. The plaintiff has licence to manufacture more than 100 drugs. Documents proving the above facts have also been shown to me and the learned Counsel for the plaintiff also has not said anything contra. Consequently vacating the injunction will not prevent the plaintiff from manufacturing those drugs or even the suit drugs without using the above said trade marks. 35. The plaintiff has licence to manufacture more than 100 drugs. Documents proving the above facts have also been shown to me and the learned Counsel for the plaintiff also has not said anything contra. Consequently vacating the injunction will not prevent the plaintiff from manufacturing those drugs or even the suit drugs without using the above said trade marks. 35. It is true, as submitted by the learned Counsel for the plaintiff that in Century Traders v. Roshan Lal Duggar & Co. it was held that the registration of the mark prior in point of time to user by the plaintiff is irrelevant in an action for passing off. But this decision is not applicable to the facts of the present case, because, here, the manufacturing by the plaintiff itself is for an on behalf of the 1st defendant, as explained above. 36. I, therefore, vacate the above said ex-parte injunction granted in Application Nos.4677 to 4683 of 1988, dismiss those applications and allow the application Nos.5078 to 5084 of 1988. 37. Now, coming to application Nos.4941, 4942 and 5352 of 1988 in C.S. No.1220 of 1988 here too, the plaintiff-applicant (Antox (India) Pvt. Ltd.) (In the plaint itself) that the 1st defendant Wander Limited, Bombay represented to it that the said Wander Limited was the owner of the registered mark "Cal-De-Ce" and that the plaintiff "entered into an arrangement" with the said Wander Limited "by which" it obtained an appropriate licence from the Drug Controller and began to manufacture the product to-be marketed by the aid Wander Limited. [After discussing the evidence in paragraphs 38 to 44. His Lordship proceeded:] 45. It is clear that the above said agreement entered into between the plaintiff and the 1st defendant is only a manufacturing agreement and not an user agreement or licensed user agreement or a registered user agreement (as in the above said first seven cases.) In this connection the above said paragraphs 18 and 19 may also be seen. The licence to manufacture obtained by the plaintiff does not create any ownership right in the said trade mark in favour of the plaintiff. Clause 15(b) of the above said agreement between the plaintiff and the 1st defendant from arranging for the manufacture of purchase of the said product "Cal-De-Ce" by or from any other party. The licence to manufacture obtained by the plaintiff does not create any ownership right in the said trade mark in favour of the plaintiff. Clause 15(b) of the above said agreement between the plaintiff and the 1st defendant from arranging for the manufacture of purchase of the said product "Cal-De-Ce" by or from any other party. Here too, the plaintiff has no right to sell "Cal-De-Ce" tablet to any party excepting the 1st defendant. 46. The 2nd defendant has already obtained a licence from the Drug Controller, Madras for the manufacture of "Cal-De-Ce" tablets. The 1st defendant has since entered into another agreement dated 21.4.1987 with the 2nd defendant. 47. The reasonings adopted in paragraphs 10, 11, 18, 19, 20, 21, 22, 23, 24, 26, 27, 29, 30, 31, 32, 33, and 34, 35 above would also apply to these Application Nos.4941, 4942 and 5352 of 1988 in C.S. No. 1220 of 1988. 48. I, therefore, vacate the above said ex pane injunction granted in Application Nos. 4941 and 4942 of 1988 and allow , dismiss those applications Application No. 5352 of 1988.