Biologic & Psychotropics India ... vs Triton Health Care Pvt. Ltd.
2002 Latest Caselaw 1505 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present suit is filed by the plaintiff seeking for a decree of perpetual injunction restraining passing off the pharmaceutical products of the defendant as that of the plaintiff under the offending trade mark TRIFLU PLUS or any other identical with and/or deceptively similar trade mark and also restraining infringement of the copy right in the trade mark TRIFLU PLUS in respect of pharmaceutical products and also for damages.

2. The plaintiff has stated that it had purchased the right in respect of pharmaceuticals by way of assignment deed dated 8th May, 2001 and that its applications for registration of its trade mark TRIFLU PLUS and other trade marks are pending consideration by the Registrar of Trade Marks. The said applications have been proved as EX. PW-1/12 to PW-1/23. It is also stated that the plaintiff company has been manufacturing and marketing various pharmaceutical products included in Class-5 of the Trade & Merchandise Marks Act, 1958 since the year 1989. Further case of the plaintiff is that during the year 1989 the plaintiff company honestly and bonafidely adopted and conceived the trade mark TRIFLU PLUS in relation to their product of pharmaceuticals, which they have been openly, continuously, regularly, exclusively and uninterruptedly using since then. It is stated that the said trade mark was assigned in favor of the plaintiff by the assignor, namely, M/s Biologic & Psychotropics India (P) Ltd., who is using the trade mark TRIFLU PLUS in respect of pharmaceuticals since 1989. The said assignment deed is proved as Ex. PW-1/10 & PW-1/11. It is stated that the trade marks, monograms and logos have come about to be exclusively identified and recognised with the said products of the plaintiff. It is alleged that the defendant has also adopted and conceived the trade mark TRIFLU PLUS in relation to their products of pharamaceuticals and have been passing off their aforesaid products of inferior and sub-standard quality under the aforesaid impugned trade mark. It is stated that the use of the aforesaid trade mark by the defendant and passing off of their goods as that of the plaintiff have placed the plaintiff in a precarious position and that the said action has damaged the goodwill, reputation and business of the plaintiff and accordingly the present suit was instituted.

3. Summons and notice were issued to the defendant but no interim injunction was granted in favor of the plaintiff at the time of issuance of summons. However, in spite of service of summons none appeared for the defendant nor any written statement was filed and, therefore, the suit was directed to be proceeded ex parte as against the defendant. Permission was granted to the plaintiff to lead evidence by filing affidavit, pursuant to which an affidavit is filed. The said affidavit is sworn by Sh. Vipu. Ghai, who is the constituted power of attorney holder of the plaintiff company. He has also proved some documents, which are placed on record. The said witness has proved the averments made in the plaint. The Assignment Deed is proved as Ex. PW-1/10 and Pw-1/11. the said Assignment deed indicates that the plaintiff company got the trade mark TRIFLU PLUS assigned in their favor by the assignor, namely, M/s. Biologic & Psychotropics India (P) Ltd., who has been using the said trade mark TRIFLU PLUS in respect of pharmaceutical products, since 1989. Therefore, from the year 1989, the aforesaid trade mark was adopted and is being used by the plaintiff in relation to the pharmaceutical products of the plaintiff. It is also proved on evidence placed on record that the defendant has also adopted the trade with TRIFLU PLUS for similar pharmaceutical products as that of the plaintiff. It is also proved upon evidence produced that the defendant is using the trade mark TRIFLU PLUS exactly in the same fashion in which the plaintiff is using the said trade mark in respect of their pharmaceutical products. The said witness has also stated that in view of said action on the part of the defendant, the plaintiff has suffered not only in its goodwill and reputation but also in its business and, therefore, on the evidence on record I am of the considered opinion that the plaintiff has been able to prove its allegations made in the plaint. Having gone through the records I am also satisfied that this court has territorial jurisdiction to entertain and decide the present suit, in view of the decision of this court in TATA OIL MILLS Co. LTD. v. REWARD SOAP WORKS and in P.M. DIESELS LTD. v. PATEL FIELD MARSHAL INDUSTRIES AND Anr. . Accordingly, the suit stands decreed and a decree of permanent injunction is passed in favor of the plaintiff and against the defendant restraining the defendant, their servants, agents, representatives, dealers and all other persons acting on their behalf from passing off the goods and pharmaceutical products of the defendants under the offending trade mark TRIFLU PLUS or any other identical or deceptively similar trade mark as that of the plaintiff and also restraining the said defendant, servants, agents, representatives etc. from infringing the copy right in the trade mark TRIFLU PLUS in respect of pharmaceutical products. An injunction is also issued directing the defendant to destroy all offending counterfeit dies, blocks and other incriminating material bearing the offending mark TRIFLU PLUS in their possession and control with an intimation to the plaintiff.

4. So far the relief which regard to rendition of accounts of profit is concerned, I hold that sufficient material is not on record to grant a decree in respect of the same and, therefore, no relief is granted in respect of the said relief. The plaintiff shall, however, be entitled to costs, which I assessed at the amount or Rs. 10,000/-.