Glaxo Group Ltd. And Anr. vs R.A.S. Mani Iyer And Anr.
2004 Latest Caselaw 449 Del

ORDER

Mukundakam Sharma, J.

C.S. (OS) No. 373/2001:

1. The present suits filed by the plaintiffs praying for a decree of permanent injunction restraining the defendants, their servants, agents and all others from infringing the trademark of the plaintiffs and also restraining passing off the goods of the defendants as that of the plaintiffs and for damages.

2. While issuing summons and notices to the defendants, an order was passed also on the application filed by the plaintiffs under Order XXXIX Rules 1 and 2 of the Code of Civil Procedure restraining the defendants, their partners or porprietors, officers, servants, agents and representatives from manufacturing, exporting, selling and offering for sale, advertising, directly or indirectly, dealing in pharmaceutical preparations under the trade mark LYNACEF or any other trade mark which may be identical or deceptively similar to the trade mark ZINACEF and SUPACEF amounting to infringement of plaintiffs' trade mark, and also restraining them from using the colour scheme, arrangement of features, layout, on the packaging on the products under the name LYNACEF or any other mark which resembles that of the plaintiffs' ZINACEF and SUPACEF, product packgings, labelling, colour scheme, etc. which is likely to cause confusion or deception amounting to passing off the goods of the defendants as that of the plaintiffs, and further restraining them from using the cartons, bottles or any packaging or labelling of their product CEFTIDIN which is similar to the packaging and labelling of the plaintiffs products FORTUM.

3. The summons and notices issued from this Court were served on the defendants. However, even in spite of the said service, none appeared on behalf of the defendants. Accordingly, the interim order of injunction which was passed on February 23, 2001 was made absolute by order dated July 25, 2001. Since none appeared on behalf of the defendants nor any written statement was filed, it was ordered that the suit would proceed ex parte as against the defendants. At the request of the Counsel for the plaintiffs permission was granted to leave evidence by way of affidavit. Pursuant to the said order, an affidavit by way of evidence is filed by Shri K.K. Master. Constituted Attorney of M/s. Glaxo Group Ltd., who is plaintiff No. 1 in the present case. He has stated that he has signed the plaint. He has proved the case of the plaintiffs as also the documents which are marked as Exhibits P1 to P10 He has also filed another affidavit stating that during the pendency of the suit the plaintiff No. 2 company, namely. Glaxo India Ltd and Smith Kline Beecham Pharmaceuticals (India) Ltd. were merged whereby the merged entity is known as Glaxo Smith Kline Pharmaceuticals Ltd. with effect from October 8, 2001. A certificate of incorporation has also been placed on record as Annexure 'A' to the affidavit and, therefore, Glaxo Smith Kline Pharmaceuticals Ltd. is the plaintiff in the present suit. Learned Counsel for the plaintiff relies upon the decision of the Bombay High Court in Anglo-French Drugs and Industries Ltd. v. Eisen Pharmaceutical Company Pvt. Ltd., 1998 PTC (18).

4. I have also perused the evidence as placed on record including the documentary evidence of the plaintiff and upon going through the same I find that the case sought to be proved by the plaintiff is made out on the basis of the evidence on record. Whatever evidence is led by the plaintiff by way of oral as also documentary evidence go unrebutted and unchallenged. I have looked into the said decision. The facts of the said case are similar to the facts of the present case and accordingly I am of the considered opinion that the ratio of the aforesaid decision is squarely applicable to the facts of the present case. In view of the circumstances and the ratio of the aforesaid decision, a decree of permanent injunction is passed in favor of the plaintiff and against the defendants, their servants, agents, stockists and all others restraining them from manufacturing, exporting, selling an offering for sale, advertising, directly or indirectly dealing in pharmaceutical preparations under the trade mark LYNACEF or any other trade mark which may be identical or eceptively similar to the trade mark ZINACEF and SUPACEF amounting to infringement of plaintiff's mark, and also restraining them from using the colour scheme arrangement of features, layout on the packaging of the products under the name LYNACEF or any other mark which resembles that of the plaintiff's ZINACEF and SUPACEF, product packgings, labelling, colour scheme, etc. which is likely to cause confusion or deception amounting to passing off the goods of the defendants as that of the plaintiff's, and further restraining them from using the cartons, bottles or any packaging or labelling of their product CEFTIDIN which is similar to the packaging and labelling of the plaintiff's product FORTUM.

5. In view of passing of decree in the aforesaid manner, Counsel for the plaintiff states that he is not pressing the remaining reliefs that are sought for in the plaint. Accordingly, the said reliefs stand dismissed as not pressed. The parties are left to bear their own costs.