Smith Kline Beecham Plc. And Ors. vs Lalitbhai Patel And Anr.
2004 Latest Caselaw 165 Del

JUDGMENT

Mukundakam Sharma, J.

1. The present suit is filed by the plaintiffs seeking for a decree of permanent injunction restraining infringement of trade mark and also copyright of the plaintiff and also for a decree restraining passing of and for rendition of accounts.

2. The plaintiffs are engaged in the manufacture, marketing and distribution of various pharmaceutical and medicinal preparations including that of ZENTEL, which according to the plaintiffs is an invented word having no dictionary meaning. The plaintiffs are also the registered owner of the trade mark ZENTEL as the said trade mark is registered in the name of the plaintiff No. 2. The plaintiffs also claim copyright on the aforesaid product stating that the said product is being sold in India since 1986 in a distinctive packaging, which is substantially based on the wave pattern appearing on the ZENTEL international pack. The plaintiffs have also stated that the plaintiffs have spent huge amount in advertising and promoting the aforesaid product in India.

3. It is alleged that the defendants adopted the trade mark LETNEZ in relation to similar product containing the same salt, the said salt, which is manufactured and marketed by the defendants. It is stated that by the aforesaid adoption of the trade mark LETNEZ as well as the product packaging of the plaintiffs' reputed product ZENTEL, the defendants have infringed the trade mark as also the copyright of the plaintiffs and, therefore, the present suit is filed seeking for a decree of permanent injunction restraining violation of the trade mark and of the copyright. The defendants at one stage entered appearance through their counsel. However, no written statement and reply to the injunction application were filed. Subsequently, the counsel appearing for the defendants also stopped appearing in the suit. In that view of the matter, it was ordered that the suit will proceed ex parte as against the defendants.

4. At the request of the counsel appearing for the respondents, permission was granted to lead evidence by filing an affidavit by way of evidence, which is filed. I have perused the said affidavit filed by way of evidence, which is sworn by Mr. Debjit Gupta, who claims himself to be the constituted attorney of the plaintiff No. 1, plaintiff No. 2 as also of the plaintiff No. 3. He has proved the averments made in the plaint.

5. I have perused the said evidence, which is led on behalf of the plaintiffs. The documentary evidence, which was filed in the suit has also been proved and the said documents have been exhibited in the suit. I have perused the contents of the letter dated 4.10.2000, which is proved as Ex.P-10. The same is a letter which was written by the defendants assuring the plaintiffs that the defendant would withdraw the brand LETNEZ from the market with immediate effect. Even otherwise, the said trade mark which is adopted by the defendants is the reverse form of the trade mark of the plaintiffs. The marks of the parties is differentiated by putting one mark in the reverse form of the other but using the same alphabets. Both the products contain the same salt. The trade channel also for the two products would also be the same. They shall also be sold to the same class of purchasers. Therefore, close identity and similarity between the two trade marks is established because of which I am of the considered opinion that the plaintiffs have been able to prove the allegations made in the plaint. The intention to deceive is apparent on the face of the records. The evidence led by the plaintiffs also go unrebutted and unchallenged. In terms thereof a decree for permanent injunction is granted in favor of the plaintiffs and against the defendants in terms of paras (i), (ii) and (iii) of para 24 of the plaint.

6. In view of the fact that a decree is passed in the aforesaid manner, counsel appearing for the plaintiffs states that he is not pressing for the remaining reliefs as claimed in this plaint. The said remaining reliefs, therefore, stand dismissed as not pressed. The suit of the plaintiffs is decreed to the aforesaid extent leaving the parties to bear their own costs.