Win Medicare Pvt. Ltd. vs Mclaren Biotech (P) Ltd.
2005 Latest Caselaw 1684 Del

JUDGMENT

Swatanter Kumar, J.

1. The plaintiff is a company incorporated under the Indian Companies Act, 1956 with its registered office at 1400, Hemkunt Tower, 98, Nehru Place, New Delhi. Mr.Rajiv Behl is stated to be the Constituted Attorney of the plaintiff company who is fully authorised and familiar with the facts and circumstances of the case. The said person is empowered to sign and verify the plaint as well as institute the suit in this Court on behalf of the plaintiff-Company.

2. The plaintiff has filed the present suit for grant of relief of injunction restraining the defendant from infringing the copyright of the plaintiff in relation to the goods which are subject matter of the suit. The plaintiff further prayed that the defendant be restrained from passing off the goods of the defendant as goods of the plaintiff and for a relief of rendition of accounts, damages and delivery up.

3. Vide order dated 20th May, 2004, summons were issued against the defendant and an ad interim injunction was granted in favor of the plaintiff and against the defendant. Despite the fact that defendant was duly served, it chose not to appear. Vide order dated 28th July, 2005 the defendant was ordered to be proceeded against ex-parte in the suit and liberty was granted to the plaintiff to file evidence by way of affidavit. The affidavit of Mr.Rajiv Behl, the Constituted Attorney was filed and exhibited as Ex.PW.1/A. A certified copy of the Board Resolution authorising him to institute the present proceedings has been exhibited as Ex.P1. It is stated in the plaint that vide Deed of Assignment dated 1st September, 1990, the plaintiff was granted and assigned well known trade marks Betadine and Eczo-Betadine Along with the goodwill of the business in respect of the goods in connection with which the said trademark was being used. By virtue of the assignment, the plaintiff is the registered proprietor of the trademark Betadine and Eczo-Betadine. Following the Assignment Deed, the plaintiff was manufacturing, selling under the said trademark with its own design the said products in various parts of the country. The sale turnover as well as the advertisement expenditure incurred by the plaintiff have been given in paragraph 5 of the plaint. However, reference can only be made of the sale/expenditure of the plaintiff for last three years :

  Sale Period   Bet.Ointment       Others        Total 
January        2596              2906          5503 
2001 to
December
2001.
January        2775              3336          6111
2002 to
December
2002.
January        2723              3530          6252
2003 to
December
2003.
Expenditure
January        13,018,298        15,535,515   28,553,813
2001 to
December
2001.
January        12,760,787        19,795,094   32,555,881

to December
2002.
January        14,666,916        16,703,342   31,370,258
2003 to
December
2003.
 

4. The plaintiff came to know that the defendant was infringing the trade mark of the plaintiff and selling the goods in the carton deceptively similar to that of the plaintiff's. The exact constitution of the defendant was not known to the plaintiff and the brand name being used was Gaurdine instead of Betadine.

5. Primarily, the object of the defendant was to mislead the general public and sell the goods of the defendant as goods of the plaintiff. As per the evidence of the plaintiff, the plaintiff-Company was established in the year 1981 and is stated to have carved a niche for itself in the field of manufacturing, development and marketing of high quality pharmaceutical formulations. The plaintiff spent heavily on advertisement of its products. The statements and the advertisement material are P-2 and P-3 as placed on record in terms of Ex.P-1. According to the plaintiff, Betadine ointment carton constitutes an original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957.

6. The plaintiff being the owner of the copyright in the product packaging of medicinal preparations bearing the said mark, is also the registered proprietor of the said work bearing No. A-53290/96 and thereby has exclusive right to use or reproduce the same in any material form. A certified copy of the copyright registration certificate is exhibited on record as Ex.P-6. The defendant is manufacturing and marketing a Povidone-lodine Ointment USP under the trademark Guardine in a carton/packaging which is stated to be similar to that of the plaintiff and is exhibited as Ex.P-7. According to the plaintiff, the defendant is infringing the trademark as well as the copyright of the plaintiff, which is clear from Ex.P-7. On the basis of above evidence, the plaintiff has filed the present suit claiming the above reliefs.

7. The defendants have already been proceeded against ex-parte in these proceedings and the evidence led by the plaintiff by way of affidavits remains unrebutted. There is no reason before the Court to disbelieve the version of the plaintiff and grant him relief in accordance with law. The averments made in the plaint, evidence led by Ex.PW 1/A as well as various documents placed on record show that the grievance of the plaintiff in regard to relief of injunction and other allied reliefs, is sustainable in law. In the entire affidavit filed by the plaintiff by way of evidence, there is no reference to damages and the basis on which the plaintiff has based its claim for recovery of damages for Rs. 5 lacs. For the grant of damages, it is obligatory upon the part of the plaintiff to lead cogent and proper evidence in support of such claim. Whatever be the nature of claim of damages, it essentially has to be established by positive evidence. The affidavit is completely silent in regard to claim of damages while on the other hand, no document has been filed by the plaintiff which could even remotely suggest the basis for claiming such damages.

8. Direct or remote damages essentially must be proved in accordance with law and if there is no evidence, the Court cannot assume in law that every claim for grant of injunction should always grant damages as a consequential relief. A balled averment made in the plaint with regard to damages, would not be per se evidence for justifying the claim of damages. Learned counsel appearing for the plaintiff relied upon the judgments in the cases of Time Incorporated v. Lockesh Srivastava and Anr. 2005 (30) PTC 3 (Del), Microsoft Corporation v. Yogesh Popat and Anr. 2005 (30)PTC 245 (Del) and Amar Nath Sehgal v. Union of India 2004 (30) PTC 252 (Del) to contend that the plaintiff is entitled to damages. In all these cases, the Court had granted punitive and exemplary damages for flagrant infringement of the plaintiff's trademark. Lack of even a basic averment in the affidavit would, in no way further the cause of the plaintiff. In the case of Relaxo Rubber Limited and Anr. v. Selection Footwear and Anr 1999 PTC (19) 578, a decree was passed under the provisions of Order 8 Rule 10 of the CPC which is not a case here. In the absence of any evidence, the plaintiff would not be entitled to claim damages. A sum of Rs. 5 lacs has been claimed by the plaintiff in the plaint as damages on account of loss suffered in business. This per se is not a punitive damages in the decision of the Court. Loss of business is a matter of accountancy and must be proved on record. The plaint lacks the requisite particulars about the damages, while the affidavit of PW-1 Mr.Rajiv Behl is entirely silent about this aspect of the case.

9. For the reasons aforestated, while declining the relief of damages, as prayed for by the plaintiff, a decree in terms of clauses (i) to (iv) of para 17 is passed in favor of the plaintiff and against the defendant. The plaintiff would also be entitled to proportionate costs.

10. The suit and IA No. 3316/04 stand disposed of accordingly.