Delhi High Court
Cureway Drugs & Anr vs Sahajanand Health Care & Ors on 24 May, 2017
22
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 1075/2016 & I.A. 16227/2013
CUREWAY DRUGS & ANR ..... Plaintiffs
Through: Mr. Sumit Rajput, Advocate.
versus
SAHAJANAND HEALTH CARE & ORS ..... Defendants
Through: Mr. Shubham Shanker Saxena,
Advocate with Mr. Rajiv Shukla,
Advocate for defendants No.1 and 3.
% Date of Decision : 24th May, 2017
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
1. Present suit has been filed for permanent injunction restraining
infringement of copyright, passing off, damages/rendition of accounts and
delivery up etc. The prayer clause in para 33 of the plaint is reproduced
hereinbelow:-
"i) a decree for permanent injunction restraining the
Defendant, its directors, assigns in business, dealers, stockiest
etc. from using the impugned GOLDEN ULTIMATE SKIN
CREAM, GOLDEN ULTIMATE SOAP carton/label/packaging
or any other carton/label/packaging that may be a colourable
imitation or substantial reproduction of ULTIMATE SKIN
CREAM & ULTIMATE SOAP cartons/labels/packagings in
respect of their colour combination, get up, layout as
arrangement of features as may amount to infringement of
copyright of the Plaintiffs therein;
ii) a decree for permanent injunction restraining the
Defendant, its directors, assigns in business, dealers, stockiest
etc. from manufacturing, selling, offering for sale, advertising,
directly or indirectly dealing in GOLDEN ULTIMATE SKIN
CREAM, GOLDEN ULTIMATE SOAP under the impugned
trade mark, carton/label/packaging or any other mark,
carton/label/packaging or get up as may be deceptively similar
with ULTIMATE SKIN CREAM, ULTIMATE SOAP
carton/label/packaging or set up as may lead to confusion or
deception amounting to passing off of the goods/business of
the Defendant for those of the Plaintiff or may constitute acts
of unfair competition;
iii) A decree for delivery up of all the infringing
cartons/packagings, labels, printing materials, printing
cylinders, blocks, dyes, articles etc. to an authorized
representative of the Plaintiff for destruction/erasure.
iv) An order for rendition of accounts of profit illegally
earned by the Defendant and a decree for an amount so found
due or in the alternative a decree for Rupees Twenty Lakhs
(Rs.20,00,000) towards token damages may be passed in
favour of the Plaintiff and against the Defendant.
v) An order for costs in the proceedings;
vi) any other order as this Hon'ble Court deems fit and
proper in the facts and circumstances of this case."
2. On 08th October, 2013, the learned Predecessor of this Court had
restrained the defendants, their partners/proprietor, their assignees in
business, distributors, licensees and dealers from manufacturing, selling,
offering for sale, advertising, directly or indirectly dealing in medicinal
preparation/skin cream/soap etc. or any other medicinal products under the
impugned trade mark GOLDEN ULTIMATE packaging or any other
packaging as may be a slavish or colourable imitation or substantial
reproduction of ULTIMATE SKIN CREAM & ULTIMATE SOAP
packaging in respect of colour combination, get up, lay out and arrangement
of features, amounting to infringement of copyright of the plaintiffs.
3. On 01st December, 2014, defendant No.2 was proceeded ex parte.
4. Defendants No.1 and 3 have filed their written statements.
5. In the written statements, it is stated that the defendants had no
intention to infringe upon the copyright product of the plaintiff and that on
acquiring knowledge of the fact that the name of the product i.e.
ULTIMATE SKIN CREAM is registered under the Copyright Act and is
protected, the defendants have dropped the idea of trading/supplying the
same leave alone manufacturing it under the trade mark GOLDEN
ULTIMATE. The defendants have also undertaken not to initiate the
production, manufacture or supply of any cream under the trade mark
GOLDEN ULTIMATE till the mark ULTIMATE SKIN CREAM of the
plaintiff ceases to exist under the Copyright Act or any other law.
6. Today, learned counsel for defendants No.1 and 3 reiterates that he
has no objection if the present suit is decreed in accordance with prayers (i)
and (ii) of the prayer clause. He, however, states that he has no instructions
with regard to award of compensation/damages.
7. Consequently, the present suit and application are decreed in
accordance with prayers (i) and (ii) of paragraph 33 of the plaint along with
actual costs incurred by the plaintiff. The costs shall amongst others include
the lawyers fees as well as the amount spent on purchasing Court-fees.
Registry is directed to prepare the decree sheet accordingly.
MANMOHAN, J
MAY 24, 2017
js
