Delhi High Court
Glaxosmithkline ... vs Theodar Laboratories Private ... on 23 January, 2006
Equivalent citations: 2006 (33) PTC 629 Del
Author: S K Kaul
Bench: S K Kaul
JUDGMENT
Sanjay Kishan Kaul, J.
1. The plaintiff has filed a suit for permanent injunction, infringement of copyright, passing of, rendition of accounts and delivery up, etc. in respect of the packaging of the plaintiff for its product VIMERAL.
2. The plaintiff claims to be a Member of the Glaxo Wellcome Group of Companies having presence all over the world including in India. The plaintiff is engaged in manufacture, marketing and distribution of pharmaceutical, medicinal and veterinary preparations and is the registered proprietor of the trademark VIMERAL which is vitaminised food stuffs and food supplements for animals.
3. The grievance made in the suit is in respect of the packaging Annexure P-I of the plaintiff for sale of the said product VIMERAL. The packaging is stated to be used since 1989.
4. The plaintiff claimed that its cartons has distinctive colour scheme, get up, lay out and unique features. The said carton has three colours base comprising of dark green, white and yellow. The upper portion of the carton containing the trademark VIMERAL, the middle portion of the carton has white strip showing pictures of cattles and animals.
5. The plaintiff claims that the purchaser of its product is not a discerning customer as it is used for various animals and the carton of the defendant is a slavish imitation of the carton of the plaintiff, which would mislead the innocent consumer and purchasers. This would cause loss to the plaintiff and the defendant is trying to ride on the reputation and goodwill of the plaintiff.
6.The defendants did not enter appearance despite service and were thus proceeded ex parte.
7. The plaintiff has filed an affidavit of Ms. Sree K. Patel, Constituted Attorney as examination-in-chief. Learned counsel states that there is no need for personal appearance of the deponent in view of the provisions of Order XIX Rule 2 (sub-Rule 2). The power is conferred on the Court to exempt the personal attendance of the witness and the same reads as under:
2. Power to order attendance of deponent for cross-examination.
(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either party, order the attendance for cross-examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court or the Court otherwise directs.
8. In view of the aforesaid I am satisfied that given the facts and circumstances of the case, the personal attendance/appearance of the witness can be exempted and it is ordered accordingly.
9. The copy of Power of Attorney is Exhibit P-1. Exhibit P-3 is the carton of the plaintiff while exhibit P-4 is carton of the defendant.
10. A comparison of the two cartons show that the defendant has adopted the identical colour scheme and arrangement of the trade name. The white strip in the middle portion of the carton is similarly placed showing the cows and hen in similar position. Taking into consideration that the product is utilised as a supplement of Vitamin for cattle and poultry feeding, the innocent purchaser is likely to be misled in associating the product of the defendant with that of the plaintiff. It is clearly an attempt on the part of the defendants of slavish imitation. This is apparent from the copy of the cartons which are as under:
11. In view of the aforesaid, a decree for permanent injunction is passed in favor of the plaintiff and against the defendant restraining the defendant from using packaging, exhibit P-4 or any other packaging deceptively similar to the packaging of the plaintiff, exhibit P-3. The plaintiff shall also be entitled to costs.
12. A perusal of the plaint shows that the plaint has been deficiently stamped for the purposes of court fee in view of the judgment of this Court in CS (OS) No. 1165/2001 titled 'Pfizer Products, Inc. v. B.L. and Co. and Ors.' and Connected Matters decided on 03.10.2005. Learned counsel for the plaintiff undertakes to make up the deficiency of court fee within 15 days and the decree- sheet shall be drawn up only thereafter.
