Beecham Group Plc. vs. S.R.K. Pharmaceuticals 2004 (28) PTC391 (IPAB)

Since 1990, the appellant has been using the mark 'AMOXIL' in India. In 1972, this mark was registered in India in Class 5 for Pharmaceutical goods. In India, the respondent began using the mark 'LYMOXYL' in 1985. In 1987, the respondent applied for registration of the mark in India in the same class for similar goods.

The appellant filed a lawsuit against the respondent, claiming that the marks are confusingly similar. The only distinction between the two marks is the prefix 'LY' versus 'M'. The competing marks are phonetically and deceptively similar, and the goods are pharmaceutical goods as defined by Section 12(1) of the Act.

The IP Appellate Board (IPAB) ruled that the respondent dishonestly adopted the mark by copying it from the appellant, who had the mark registered many years before. As a result of prior use, the respondent cannot claim honest concurrent use. The Appellate Board ruled that the Trade Mark 'LYMOXYL' could not be registered.