Madras High Court
M/S.Apex Laboratories Pvt.Ltd vs Vignesh Pharma on 6 December, 2021
C.S.(Comm.Div.)21 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated :06.12.2021
Coram:
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
Civil Suit (Comm.Div.) No.21 of 2021
M/s.Apex Laboratories Pvt.Ltd.,
29, III Floor, SIDCO Garment Complex,
Guindy, Chennai 600 032
rep by its Authorised Signatory,
D.Jude F.L.S.Durai Pandian .. Plaintiff
/versus/
1. Vignesh Pharma,
10/303, Anjaneyar Koil Street,
Chennai 600 126.
2. Middle Mist Pharmacueticals Pvt Ltd.,
1/230, Leelavathy Nagar,
Kundrathur Main Road,
Chikkarayapuram, Chennai 600 069. ..Defendants
Prayer: Civil Suit has been filed under Order VII, Rule 1 of the C.P.C.
and Order IV, Rule 1 of the Original Side Rules Read with Sections 27,
28, 29, 134 & 135 of the Trade Marks Act, 1999 and Sections 51, 55, 62
of the Copyrights Act, 1957, praying to pass a judgment and decree for:-
(a) a permanent injunction restraining the defendant, by itself, its
partners, men, servants, agents, distributors, stockiest, representatives or
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C.S.(Comm.Div.)21 of 2021
anyone claiming through or under them from in any manner infringing
the plaintiff's registered trademarks ZINCOVIT under No.487453 in
Class 5 and other registered trademarks by using a deceptively similar
trademark ZINCPLUSVIT or any other trademark deceptively similar to
the plaintiff's registered trademark or in any other manner whatsoever;
(b) a permanent injunction restraining the defendant, by itself its
partners, men, servants, agents, distributors, stockiest, representatives or
any one claiming through or under them from in any manner committing
acts of copyrights infringement by using, in the course of trade,
labels/artistic works which are a substantial reproduction of plaintiff's
registered copyright under Nos.A-112789/2017 and other registered
copyrights in colour scheme, get up and layout for their ZINCPLUSVIT
for any tablets, syrup, drops, etc., or in any other manner whatsoever;
(c) a permanent injunction restraining the defendant, by itself, its
partners, men servants, agents distributors, stockists, representatives or
anyone claiming through or under the from in any manner passing off
and/ or enabling others to pass off the defendant products under the
trademark ZINCPLUSVIT as and for the plaintiff's products by
manufacturing, selling or offering to sell, distributing, displaying,
printing, stocking, using, advertising their products with a trademark
and/or label or artistic work that is identical in colour scheme, get up and
layout with that of the plaintiff's ZINCOVIT trademark or artistic work or
in any other manner whatsoever;
(d) the defendant beordered to surrender to plaintiff's for
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C.S.(Comm.Div.)21 of 2021
destruction of all products, labels, cartons, dyes, blocks, moulds, screen
prints, packing materials and other materials bearing the trademark
ZINCPLUSVIT label or any mark deceptively similar to plaintiff's
trademark and artistic work ZINCOVIT label.
(e) a preliminary decree be passed in favour of the plaintiff's
directing the defendant to render account of profits made by use of
trademark and copyright in the artistic work ZINCPLUSVIT label and
final decree be passed in favour of the plaintiff's for the amount of profits
thus found to have been made by the defendant after the latter have
rendered accounts;
(f) for costs of the suit; and
(g) pass such further or other reliefs as this Hon'ble Court may
deem fit and necessary in the circumstances of the case and thereby
render justice.
For Plaintiffs :Mr.R.Sathish Kumar
For Defendant :Mr.H.Arif Ali for D2
------
JUDGMENT
The present suit was filed on the ground of infringement of the
registered trademark of the plaintiff and the plaintiff had sought for
various reliefs against the defendants.
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C.S.(Comm.Div.)21 of 2021
2. During the pendency of this suit, the parties have arrived at a
compromise and a Joint Memorandum of Compromise has been filed
before this Court.
3. Relevant portions of the Joint Memorandum of Compromise are
extracted hereunder:-
"a. That the defendant has agreed to and has amended
the trademark and artistic work ZINCPLUSVIT to
ZEEPLUSVIT and the amended label is as follows:-
b. That the defendant undertakes that it will not
manufactured or market or otherwise deal with the products
bearing the trademark ZINCPLUSVIT or any other
trademark identical or deceptively similar to the plaintiff's
product ZINCOVIT at point of any point in future
whatsoever.
c. The plaintiff and defendant pray that the above suit
may be decreed in terms of Prayers (a) (b) and (c) of
Paragraph 34 of the Plaint and the plaintiff is willing to give
up the reliefs under prayers 34(d) and 34(e) of the suit in
view of this Memorandum of Compromise.
d. The defendant further undertakes that in the event of
any breach of this undertaking to this Hon'ble Court, they
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C.S.(Comm.Div.)21 of 2021
would be liable to pay liquidated damages of Rs.10 Lakhs to
the plaintiff besides the other legal remeies that the plaintiff
may be entitled to."
4. In view of the above, this Civil Suit is decreed in terms of Joint
Memorandum of Compromise and the Joint Memorandum of
Compromise shall form part of the decree. Considering the facts and
circumstances of this case, there shall be no order as to costs.
Consequently, connected applications are closed, if any.
06.12.2021
Index:yes/no
nsa/rka
List of Witness examined on the side of the Plaintiffs:-
Mr.R.Prasanna Raghavan ----- PW.1
List of Witness examined on the side of the Defendant :-
-----
List of the Exhibits marked on the side of the Plaintiff:-
Sl. Dated Description of documents Nature & Party
Nos.
1. 16.03.1988 Trademark registration certificate Plaintiff (Photocopy)
of the plaintiff under No.487453
in class 5 for ZINCOVIT (word
per se) along its latest renewal
2. 26.04.2012 Letter from the Director of Drugs Plaintiff (Photocopy)
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C.S.(Comm.Div.)21 of 2021
Sl. Dated Description of documents Nature & Party
Nos.
Control to the plaintiff stating the
date of drug license for
ZINCOVIT to the plaintiff
3. 04.08.2005 Food License obtained by the Plaintiff (Photocopy)
plaintiff for ZINCOVIT
4. 13.06.2011 Trademark Registration Plaintiff (Photocopy)
Certificate of the plaintiff under
ZINCOVIT
5. 13.06.2011 Trademark Registration Plaintiff (Photocopy)
Certificate of the plaintiff under
ZINCOVIT
6. 12.12.2014 Copyright registration certificate Plaintiff (Photocopy)
in favour of the plaintiff under
No.A-112788/2014 for the
artistic work ZINCOVIT
7. 12.12.2014 Copyright registration certificate Plaintiff (Photocopy)
in favour of the plaintiff under
No.A-112789/2014 for the
artistic work ZINCOVIT syrup
8. 02.01.2017 Copyright registration certificate Plaintiff (Photocopy)
in favour of the plaintiff under
No.A-115854/2017 for the
artistic work ZINCOVIT syrup
9. 1990 Sample invoices for the sale of Plaintiff (Photocopy)
onwards ZINCOVIT syrup, drops, tablet
by the plaintiff
10. - Media clippings and other Plaintiff (Photocopy)
promotional material using the
trademark ZINCOVIT
11. - Plaintiff's ZINCOVIT tablet Plaintiff (Photocopy)
carton with the 7 coloured label
12. - Defendant ZINCPLUSVIT Defendant (Photocopy)
carton with 7 coloured label and
bill
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C.S.(Comm.Div.)21 of 2021
List of the Exhibits marked on the side of the Defendants:-
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N.ANAND VENKATESH. J.,
nsa/rka
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C.S.(Comm.Div.)21 of 2021
C.S.No.21 of 2021
06.12.2021
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