Panacea Biotec Limited vs Anchor Pharma Pvt. Limited
2002 Latest Caselaw 50 Del

JUDGMENT

D.K. Jain, J.

1. The plaintiff company has filed the present suit for permanent injunction, passing off, infringement of copy right and damages, inter alia, praying for a decree restraining the defendant, their servants, agents, dealers, proprietors/ partners/directors, stockists, representatives and all other persons acting on their behalf from manufacturing and selling, offering for sale or otherwise dealing in, directly or indirectly, drugs, pharmaceuticals and medicines including Nimesulide tablets under infringing trade mark "Ansulide" or any other trade mark which may be identical with or deceptively similar to the reputed trade mark "Nimulid" of the plaintiff's; from passing off defendant's goods as goods of the plaintiff; from infringing the copy right of the plaintiff with regard to their distinctive packing box/packing wrapper and packing strips in respect of medicines including Nimesulide tablets and for order for destruction of all the blocks, dies, packing cartons/wrappers, packing boxes, packing material/cartons and stationery etc. used for infringing the aforesaid trade mark "Nimulid".

2. The plaintiff company is engaged in the business of manufacturing and selling "drugs and pharmaceuticals". They had obtained a drug license regarding the use of the trade mark "Nimulid" in January 1995. The said medicinal preparation is used for ailment of inflammatory control, analgesic and antipyretic etc. It is claimed that in a short span of three years this medicine became popular with the patients, doctors, hospitals and other medical institutions all over India. The medicine under the trade mark "Nimulid" in tablet form is packed and offered for sale in distinctive packing cartons/packing wrappers/packing strips having a unique colour combination. The plaintiff company claims to be the owner of exclusive proprietory rights with respect to the artistic work on the cartons/blister strips under the provisions of Indian Copyright Act, 1957 (in short 'the Act'). It is averred that the plaintiff on account of the quality of their produce have acquired unique goodwill and reputation with respect to its Nimesulide tablets under the trade mark "Nimulid". It is alleged that since November 1995 various other companies had tried to copy plaintiff's trade mark and the artistic design work and colour scheme of the cartons and the blister strips and pass off Nimesulide tablets in the market as that of the plaintiff's. The plaintiff was compelled to file suits for injunction against various companies to protect their proprietory rights. Some of the suits, on giving undertaking by the defendant companies, ended in compromise decrees, whereas in others, plaintiff has been successful in obtaining injunction restraining them from using the trade mark and artistic design work of packing cartons and strips which were identical and deceptively similar to that of the plaintiff.

3. It is pleaded that in the last week of January 1998 the plaintiff came to know that defendant has started manufacturing and selling Nimesulide tablets under the trade mark "Ansulide" packed in blister packing and packing strips consisting of yellow and blue colour combination amounting to infringement of plaintiff's copy right as well as passing off their goods as those of plaintiff's. The plaintiff company, thus, filed the present suit for injunction, passing off, infringement of copy right and damages etc.

4. The suit was registered on 19 February 1998. On the same day, by an ex parte ad-interim injunction the defendants were restrained from manufacturing and offering for sale the Nimesulide tablets in yellow and blue blister packing and packing strips and the packing carton which were similar to plaintiff's yellow and blue coloured blistered packing stirps. A Local Commissioner was also appointed to take into custody the infringement material of the defendant.

5. Notice of the suit and the injunction application was duly served on the defendant. Despite service defendant failed to put in appearance and, therefore, they were proceed ex-parte. The plaintiff was required to prove its case by leading evidence by way of affidavits.

6. An affidavit of Shri J.K. Madina, constituted attorney, of the plaintiff company has been filed by way of ex parte evidence and the relevant documents have been proved and exhibited. The constituted attorney of the plaintiff company has stated in the affidavit that the Board of Directors have duly authorised him to sign, verify and institute the present suit. He has proved the power of attorney in his favor and the certificate of incorporation of the plaintiff company which establishes that the present suit has been filed by a duly authorised person. The deponent has further proved the averments in the plaint. He has testified as to how the plaintiff came to know about the infringement of their copy right and use of the trade mark "Nimulid" by the defendant. He has also proved copies of bills/invoices of the plaintiff company regarding the sale of Nimesulide tablets under the trade mark "Nimulid" in yellow and blue wrappers in packing boxes/strips etc. as Ex. PW-4/a to PW-4/w. He has also stated about earlier suits for injunction filed against various companies by the plaintiff and has proved the injunction orders and final decrees passed in those suits. He also proved the packing box of the plaintiff as Ex. PW-6 and that of the defendant as Ex. PW-7 and has pointed out that the same has the trade mark "Ansulide" and the infringing yellow and blue colour scheme, get up and lay out which was similar to that of the plaintiff's. He also proved the blister packing of the plaintiff as Ex. PW-8 and that of the defendant as Ex. PW-9. It has also deposed that the goods of the defendant i.e. medicines sold under the trade mark "Ansulide" is having the same composition and meant for the same ailment and are being sold on the same shops and across same counters which, cause confusion and deception in the minds of unwary purchasers. He has also stated that the plaintiff has suffered huge losses in their reputation and business on account of the fact that defendant had started manufacturing and passing off their products in the market as that of the plaintiff's, encashing on their reputation and goodwill.

7. In view of the evidence adduced by the plaintiff, which remains unrebutted, it is established that the defendant has been using the offending trade mark "Ansulide" and packing cartons/packing boxes and packing strips which are identical/deceptively similar to that of the plaintiff's copy right and are passing off their medicines as that of the plaintiff's. The evidence adduced by the plaintiff establishes that by manufacturing and marketing the medicinal product having same composition and passing off the same in the market as that of the plaintiff's, the defendant has caused losses to the plaintiff whereas defendant has earned profits on that account by encashing the reputation and goodwill of the plaintiff.

8. As observed by the Supreme Court, the Courts need to be particularly vigilant where the defendant's drug, of which passing off is alleged,is meant for curing the same ailment as the plaintiff's medicine. In the case of passing off action what has to be seen is the similarity between the competing marks and to determine whether there is likelihood of deception or causing confusion. (See: Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. .

9. in the present case the plaintiff has placed on record and proved their own packing cartons and blister strips and that of the defendant's. On a visual comparison of the two, one finds that the layout, design, get up, colour combination and artistic work on the defendant's cartons/packing/blister strips is so deceptively similar that it is difficult to locate dissimilarities at a glance. It appears to be a flagrant and blatant attempt on the part of the defendant to imitate the plaintiff's design work and colour scheme etc. for the same products with a view to deceive the purchasers and exploit and encash their goodwill in order to pass off their products as that of the plaintiff's.

10. The plaintiff is, therefore, entitled to the grant of injunction prayed for. Accordingly, decree for permanent injunction is passed in favor of the plaintiff and against the defendant in terms of prayer

(a), (b) and (c) of para 24 of the plaint with the direction to the defendant company to destroy all the blocks, dies, packing cartons/wrappers, packing boxes etc. as prayed for in prayer (d) of para 24 of the plaint.

11. So far as prayer (e) of para 24 of the plaint, relating to rendition of accounts, is concerned, Mr. M.L. Mangla, learned counsel for the plaintiff, states that he gives up all other claims made in the plaint against the defendant.

12. The suit is accordingly decreed in the aforenoted terms with costs. Decree sheet be drawn up accordingly.