Madras High Court
Apex Laboratories Ltd vs Chirag Pharmaceuticals on 26 August, 2021
C.S.No.373 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 26.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
C.S.No.373 of 2005
Apex Laboratories Ltd.,
No.76, C.P.Ramaswamy Road,
Alwarpet, Chennai – 600 018. ...Plaintiff
Vs.
1.Chirag Pharmaceuticals,
151-A, Baajujei,
Shahajanpur – 242 001.
2.Trimax Pharmaceuticals Pvt. Ltd.,
E-126, Industrial Area, Phase VII,
SAS Nagar – 160 055. ...Defendants
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 134 & 135 of the Trademarks Act,
1999, praying as follows:-
a) granting a permanent injunction restraining the defendants
above named by themselves, their servants, agents or anyone claiming
through them from in any manner infringing the Plaintiffs' registered Trade
Mark “ZINCOVIT” by using the offending trade mark “ZINCOVIT” or any
other mark or marks which are identical and similar to the plaintiff's
registered trade mark “ZINCOVIT”;
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C.S.No.373 of 2005
b)granting a permanent injunction restraining the defendants, their
servants or agents or anyone claiming through them from in any manner
passing off of their pharmaceutical products bearing the offending trade
mark “ZINCOVIT” as and for the celebrated pharmaceutical products of the
plaintiffs bearing the registered trade mark “ZINCOVIT”, either by
manufacturing, selling or offering for sale or in any manner advertising the
same;
c) directing the defendants to surrender to the plaintiffs the entire
stock of unused offending cartons bearing the offending trade mark
“ZINCOVIT” together with blocks and dyes for destruction;
d) directing the defendants to render a true and faithful account of
the profits earned by the defendants through the sale of the pharmaceutical
products sold under the offending trade mark 'ZINCOVIT' and directing
payment of such profits to the plaintiffs for the passing off committed by the
Defendants;
e) directing the defendants to pay to the plaintiffs the costs of the
suit.
For Plaintiff : Mr.R.Sathishkumar
For Defendants : Set exparte
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C.S.No.373 of 2005
JUDGMENT
The plaintiff, who is the registered proprietor of the trademark
“ZINCOVIT”, seeks a decree for permanent injunction restraining the
defendants from using the same trademark for the same goods namely, multi
vitamin tablets, injunction restraining the defendants from passing off of
their pharmaceutical products with the offending mark “ZINCOVIT”
thereby, infringing the registered trademark of the plaintiff, for mandatory
injunction for surrender of all the unused offending cartons and packing
materials, for accounts and for costs.
2.According to the plaintiff, it is the owner of the trademark
“ZINCOVIT”, which is the name assigned for the multi vitamin tablets
manufactured and marketed by it for over 31 years now. At the time of the
suit, the user was for about 15 years. Despite service, the defendants have
not appeared either in person or through counsel. Hence, the defendants
were set exparte.
3.One Mr.D.Jude F.L.S.Durai Pandian has been examined as
P.W.1. The plaintiff has a valid registration of the said trademark. The
registration certificate has been produced as Ex.P2 along with relevant legal
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C.S.No.373 of 2005
user certificate. It is seen there from that the registration of the plaintiff is
still alive. The packaging and the representation of the plaintiff's product
has been marked as Ex.P3. The defendants' product along with the
packaging has been marked as Ex.P4. A perusal of the same reveals that the
defendants are also using the same name “ZINCOVIT” for their multi
vitamin tablets.
4.The above action of the defendant amounts to a clear
infringement of the plaintiff's mark. No doubt, there is a slight difference in
the manner of the writing of the word “ZINCOVIT”, but the same will not
constitute a sufficient cause to allow the defendants to continue the
infringement of the plaintiff's mark. I am therefore, of the considered
opinion that the plaintiff is entitled to a decree as prayed for. Accordingly,
this suit is decreed as prayed for. No costs.
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kkn
Internet:Yes
Index:No
Speaking
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C.S.No.373 of 2005
List of witness examined on the side of the plaintiff:
Mr.D.Jude F.L.S.Durai Pandian (P.W.1)
List of documents marked on the side of the plaintiff:
S.No. Description of Documents Exhibit
1 The certified copy of the Board resolution dated 22.08.2019. Ex.P1
2 The certified copy of the Trade Mark registration bearing No.487453 Ex.P2
in Class 5.
3 The specimen of the plaintiff “ZINCOVIT”. Ex.P3
4 The specimen of the defendant “ZINCOVIT”. Ex.P4
List of witness and documents filed on the side of the defendants:
Nil
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C.S.No.373 of 2005
R.SUBRAMANIAN, J.
KKN
C.S.No.373 of 2005
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C.S.No.373 of 2005
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