Delhi High Court
Pfizer Products, Inc & Anr vs Platinum Pharmaceuticals Pvt Ltd ... on 9 March, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.2246/2011
% 9th March, 2016
PFIZER PRODUCTS, INC & ANR ..... Plaintiffs
Through: Mr. Sahil Sethi, Advocate with Mr.
Shivam Sharma, Advocate.
versus
PLATINUM PHARMACEUTICALS PVT LTD & ORS ..... Defendants
Through
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This is a suit for injunction filed by the plaintiffs-company M/s
Pfizer Products and M/s Pfizer Limited alleging infringement of the
registered trademark of the plaintiffs BECOSULES on account of defendant
no.1 manufacturing and selling the same drug under the trademark
BEQSULE. Plaintiff also alleges passing off its goods by the defendant no.1
on account of the defendant no.1 using similar blister packaging having the
same colour combination as that of the plaintiffs. Plaintiffs also claim
damages of Rs.20,00,200/-.
CS(OS) 2246/2011 Page 1 of 4
2. As per the plaint and the affidavit by way of evidence filed by
the plaintiffs, the defendant no.1 is the manufacturer of the drug using the
trademark BEQSULE.
3. I may note that originally there were a total of four defendants
in the suit. Plaintiffs have compromised the matter with defendant nos.3 and
4 and therefore the suit is not pressed so far as defendant nos.3 and 4 are
concerned. Suit has been withdrawn by the plaintiff against defendant no.2.
Plaintiffs presently therefore seeks relief only against the defendant no.1 M/s
Platinum Pharmaceuticals Pvt. Ltd.
4. Plaintiffs have led evidence in support of its case by proving the
due filing of the suit by filing of power of attorney as Ex.PW1/1, the legal
proceeding certificate and renewal details of the plaintiff no.1's trademark
BECOSULES is proved and exhibited as Ex.PW1/3. Plaintiff no.1 became
owner of the company by virtue of the assignment deed dated 3.5.2002
which has been proved and exhibited as Ex.PW1/2.
5. Plaintiffs have also filed and proved on record as per its
affidavit by way of evidence its product alongwith blister packaging as
Ex.PW1/4 and the blister packaging of the product of the defendant no.1 has
been filed and proved as Ex.PW1/8. A comparison of the blister packaging
CS(OS) 2246/2011 Page 2 of 4
shows that trade dress adopted by the defendant no.1 is same as that of the
plaintiffs being in the combination of the white and reddish orange.
6. In view of the above, plaintiffs have made out a case for grant
of injunction against the infringement of its trademark and passing off its
goods by the defendant no.1 as plaintiffs have been shown and proved to be
the owners of the registered trademark BECOSULE and the defendant no.1
illegally selling the drug under the deceptively similar trademark BEQSULE.
Defendant no.1 is also found to be occupying the trade dress of the plaintiff.
7. Though counsel for the plaintiff argues for grant of punitive
damages of Rs.5 lacs and places reliance upon a judgment of the learned
Single Judge of this Court in the case of Time Incorporated Vs. Lokesh
Srivastava & Anr. 2005 (30) PTC 3 (Del), however, it is noted that in the
suit plaint, plaintiff has only claimed a lumpsum damages of Rs.20,00,200/-
and which are essentially therefore damages for losses caused to the plaintiff
and which losses have not been proved. Since there is no averment in the
plaint of plaintiffs being entitled to the punitive damages of Rs.5 lacs
therefore, no amount of evidence can be looked into which is not averred in
the plaint. Plaintiffs therefore cannot be granted any punitive damages
although as per the ratio of the judgment in the case of Time Incorporated
CS(OS) 2246/2011 Page 3 of 4
(supra) punitive damages can be granted since the ratio of the judgment in
the case of Time Incorporated (supra) is irrelevant in the facts of the present
case where there is no pleading for grant of punitive damages.
8. In view of the above, the suit of the plaintiffs is decreed against
the defendant no.1 and defendant no.1 is restrained from in any manner
selling its products under the trademark BEQSULE. Defendant no.1 is also
restrained from passing off its products as that of the plaintiff including by
using the trade dress which is identical or deceptively similar to the trade
dress of the plaintiff Ex.PW1/4 having a combination of colours white and
reddish orange strip. Defendant no.1 is injuncted from using a trademark
which is identical or deceptively similar to the trademark BECOSULES of
the plaintiffs. Suit is decreed to the aforesaid extent. Plaintiffs will also be
entitled to the costs of the suit. Decree sheet be prepared.
MARCH 09, 2016 VALMIKI J. MEHTA, J.
Ne
