Delay In Instituting Passing Off Action Not Condonable

Macleods Pharmaceuticals Ltd., moved an ad-interim application for the action of passing off under the provisions of Trade and Merchandise Marks Act, 1999, wherein Macleods Pharmaceuticals sought an injunction from the court, to restrain the Tidal Laboratories from using the impugned trade mark "Rabemax" or any other mark bearing similarity to the Macleods Pharmaceuticals’s mark "Rabemac". In the prayer, they also sought for the appointment of the Court Receiver in respect of various materials, packages, cartons, articles and the dyes.

Macleods Pharmaceuticals claim to have a pending application for registration of ‘Rabemac’ under the Trade Marks Act. The Macleods Pharmaceuticals claim that the mark has been in use since March 2002, though the application produced by Macleods Pharmaceuticals as an exhibit purportedly indicated use since 2001. To this Macleods Pharmaceuticals stated in the plaint that though the mark was conceived in 2001, sale did not begin until October