Madras High Court
Ttk Healthcare Limited vs Sifco Pharma on 24 August, 2021
C.S.No.663 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.663 of 2014 and
O.A.Nos.813 to 815 of 2014 and
A.Nos.6413 & 6414 of 2014
TTK Healthcare Limited,
6, Cathedral Road,
Chennai – 600 086.
Represented by its Diretor,
Mr.S.Kalyanaraman ...Plaintiff
Vs.
Sifco Pharma,
6-4-52, Bholakpur,
Musheerabad,
Secunderabad – 500080. ...Defendant
Prayer: Plaint filed under Order IV Rule 1 of the Original Side rules and
Order VII Rule 1 of C.P.C., r/w. Sections 27, 28, 29, 134 & 135 of the
Trademarks Act, 1999 r/w. Sections 51, 54, 55 and 62 of the Copyrights Act,
1957:-
a) a permanent injunction restraining the defendant, their men,
distributors, stockists, servants, agents, successors in business, retailers,
legal representatives, assigns or any other person claiming through or under
them from in any manner infringing the Plaintiff's registered trademarks in
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C.S.No.663 of 2014
the word WOODWARD'S, WOODWARD'S Gripe Water label, logo
containing the device of a baby and other features by use of deceptively
similar mark, label / logo CHILDWOODS / CHILDWELLS for gripe water
or any other medicinal preparations or in any manner whatsoever;
b) a permanent injunction restraining the defendant, their men,
distributors, stockists, servants, agents, successors in business, retailers,
legal representatives, assigns or any other person/s claiming through or
under them from in any manner manufacturing, selling, offering for sale,
stocking, advertising, directly or indirectly dealing in products and
preparations using a packaging / label / logo CHILDWOODS Gripe Water
or CHILDWELLS Gripe Water which is imitative of the Plaintiff's trade
dress in the WOODWARD'S Gripe Water packaging / label / logo or any
other identical or deceptively similar packaging / label / logo so as to pass
off and enable others to pass off the defendant's gripe water, medicinal
preparations as and for gripe water, medicinal preparations of the plaintiff or
in any other manner whatsoever;
c) a permanent injunction restraining the defendant, their men,
distributors, stockists, servants, agents, successors in business, retailers,
legal representatives, assigns or any other person claiming through or under
them from in any manner committing acts of copyright infringement by
printing, producing, using, selling CHILDWOODS Gripe Water /
CHILDWELLS Gripe Water label / packaging, which is a substantial
reproduction of plaintiff's artistic work 'WOODWARD'S Gripe Water' label
containing distinctive colour scheme, get-up, layout, arrangement of
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C.S.No.663 of 2014
features and other artistic features or in any other manner whatsoever;
d) the defendant be ordered to surrender to the plaintiff all their
products, medicinal preparations, gripe water in bottles wrapped in imitative
trade dress, labels / packaging, leaflet, brochures, dyes, blocks, screen prints
and other materials containing the deceptively similar mark, label / logo
CHILDWOODS Gripe Water of CHILDWELLS Gripe Water deceptively
similar to the Plaintiff's WOODWARD'S Gripe Water label / logo with the
device of a baby and other features for destruction purposes;
e) the defendants be ordered to pay to the plaintiff a sum of
Rs.1,00,000/- as liquidated damages for passing off their medicinal
preparations as and for the plaintiff's medicinal preparations and for
committing trademark infringement and copyright infringement by use of
imitative trade dress;
f) a preliminary decree be passed in favour of the plaintiff
directing the Defendant to render account of profits made by use of the
deceptively similar trade mark, trade dress and copyright in the artistic work
CHILDWOODS or CHILDWELLS Gripe Water amounting to infringement
of the plaintiff's registered trademark, copyright and passing off and a final
decree be passed in favour of the plaintiff for the amount of profits thus
found to have been made by the defendant after the latter have rendered
accounts;
g) for costs of the suit.
For Plaintiff : Mr.Rahul M Shankar for
Mr.Arun C Mohan
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C.S.No.663 of 2014
JUDGMENT
The plaintiff is a registered proprietor of the trademark
“WOODWARD'S” with a device depicting a baby holding
a snake has come forward with the present suit, seeking a decree for
injunction restraining the defendant from in any manner infringing the
plaintiff's trademark “WOODWARD'S” with a pictorial depiction of a baby
holding a snake, permanent injunction restraining the defendant from
manufacturing, selling, offering for sale, stocking, advertising, directly or
indirectly dealing in products and preparations using a packaging / label /
logo 'CHILDWOODS' or 'CHILDWELLS' for the gripe water manufactured
by the defendant, permanent injunction restraining the defendant from
infringing the copyright of the plaintiff, for surrender of all the products,
bottles wrapped in imitative trade dress, labels, leaflets etc., for liquidated
damages and for costs.
2.The plaintiff is a registered proprietor of the mark
'WOODWARD'S'. The mark of the plaintiff and the packaging has been
produced as Ex.P2. The plaintiff has a valid registration of trademark for
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C.S.No.663 of 2014
the word, name and label under Registration Nos.149876 and 149878. The
ceritificate of registration has been produced as Exs.P3 and P4 and the
relevant legal user certificate has also been produced. The cease and desist
notice has been marked as Ex.P6. The returned cover has been marked as
Ex.P8.
3.One Mr.S.Venkataramani, the Senior Deputy General Manager
of the plaintiff has been examined as P.W.1. He has filed his proof affidavit
reiterating the claim made in the plaint. The defendant has remained
exparte. A comparison of the Ex.P2 with Exs.P13 and P14 would
demonstrate that there is an attempt to deceive the customers of the plaintiff.
The colour scheme and the packaging is also same. The font used for the
words 'CHILDWOOD' and 'CHILDWELLS' is also the same as
“WOODWARD'S”.
4.On examination of the infringing marks as suggested by the
Hon'ble Supreme Court in Parle Products (P) Ltd., Vs. J.P & Co.,
Mysore reported in 1972 (1) SCC 618, it is clear that there is an attempt to
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C.S.No.663 of 2014
deceive and the attempt to deceive is intentional with an aim to pass off the
products of the defendant as that of the plaintiff's. The striking similarity
that the offending marks bear towards the registered mark of the plaintiff is
bound to create confusion in the minds of the consumers. I therefore, find
that the plaintiff is entitled to the decree as prayed for. The suit is decreed
as prayed for with costs. Consequently, connected applications are closed.
24.08.2021
kkn
Internet:Yes
Index:No
Speaking
List of witness examined on the side of the plaintiff:
Mr.S.Venkataramani (P.W.1)
List of documents marked on the side of the plaintiff:
S.No. Description of Documents Exhibit
1 The original Authorization Letter dated 04.03.2021 resolution granted Ex.P1
in my favour of deposing.
2 The copy of specimen of WOODWARD'S Gripe Water label / Ex.P2
packaging.
3 The color xerox copy of the legal use certificate for Registration of Ex.P3
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C.S.No.663 of 2014
S.No. Description of Documents Exhibit
trademark WOODWARD'S CELEBRATED Gripe Water label under
No.248732 in class 5 with renewal dated 20.04.1968. (Marked after
compared with certified copy of legal use certificate).
4 The color xerox copy of the legal user certificate for Registration for Ex.P4
the trademark WOODWARD'S label under No.1404111 in classes 3,
5, 10, 16, 21 & 25 dated 05.12.2005 (Marked after compared with
certified copy of legal use certificate).
5 The color xerox copy of the legal use certificate for Registration for Ex.P5
the trademark WOODWARD'S label under No.1404112 in classes 3,
5, 10, 16, 21 & 25 dated 05.12.2005. (Marked after compared with
certified copy of legal use certificate).
6 The original Cease and Desist notice issued to the defendant dated Ex.P6
06.03.2014.
7 The original Rejoinder along with Draft undertaking issued by the Ex.P7
plaintiff dated 23.04.2014.
8 The original returned cover with postal endorsement. Ex.P8
9 The original reply to the notice issued by the plaintiff dated Ex.P9
13.03.2014.
10 The computer generated sample invoices pertaining to the sale of Ex.P10
Woodward's Gripe Water along with 65B certificate.
11 The computer generated copy of promotional materials and Ex.P11
advertisements in respect of WOODWARD'S Gripe Water series (6
sheets along with section 65B certificate and C.D).
12 The photocopy of invoices and certificates (marked with comparing Ex.P12
with the originals, verified and returned back).
13 The downloaded Specimen of CHILDWOODS Gripe Water label / Ex.P13
packaging.
14 The downloaded Specimen of CHILDWELLS Gripe Water label / Ex.P14
packaging.
15 The Section 65B Affidavit of deponent. Ex.P15
List of witness and documents filed on the side of the defendant:
Nil
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C.S.No.663 of 2014
24.08.2021
kkn
R.SUBRAMANIAN, J.
KKN
C.S.No.663 of 2014 and
O.A.Nos.813 to 815 of 2014 and
A.Nos.6413 & 6414 of 2014
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C.S.No.663 of 2014
24.08.2021
https://www.mhc.tn.gov.in/judis/
