"Energize-52" is a popular cough syrup manufactured since 2015 by "Jeevan Pharma Company". The trade mark "Energize-52" was registered in 2017, and almost seven years had expired from the date of its registration. This s

Section 11(1) of the Trade Marks Act, 1999 stipulate on Relative Grounds for Refusal of Registration. Section 11(1) provides that a trade mark shall not be registered if, because of: its identity with an earlier trade mark and similarity of goods or services covered by the trade mark; or its similarity to an earlier trade mark and the identity or similarity of the goods or services covered by the trade mark, there exists a likelihood of confusion on the part of the public, which includes the likelihood of association with the earlier trade mark. Section 11 (2) states that a trade mark which (a) is identical with or similar to an earlier trade mark; and (b) is to be registered for goods or services which are not similar to those for which the earlier trade mark is registered in the name of a different proprietor, shall not be registered if or to the extent the earlier trade mark is a well-known trade mark in India and the use of the later mark without due cause would take unfair advantage of or be detrimental to the distinctive character or repute of the earlier trade mark. Section 11 (3) provides that a trade mark shall not be registered if, or to the extent that, its use in India is liable to be prevented— by virtue of any law in particular the law of passing off protecting an unregistered trade mark used in the course of trade; or by virtue of law of copyright.