Madras High Court
M/S.Apex Laboratories Pvt.Ltd vs Omega Pharma on 20 December, 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 20.12.2021
Coram:
THE HONOURABLE Mr.JUSTICE N.ANAND VEKATESH
C.S.(Comm.Div).No.1 of 2021
M/s.Apex Laboratories Pvt.Ltd.,
Rep.by its Authorised Signatory
D.Jude F.L.S.Durai Pandian
29, III Floor, SIDCO Garment Complex
Guindy, Chennai 600 032. .. Plaintiff
.vs.
Omega Pharma
Khasra No.482, Village-Saliyat
Roorkee-247667
Distt.Haridwar, Uttrakhand. ..Defendants
Prayer: Civil Suit has been filed under Order VII Rule 1 CPC and
Order IV Rule 1 of O.S.Rules r/w Sections 27, 28, 29, 134, 135 of the
Trademarks Act, 1999 and Sections 51, 55, 62 of the Copy Rights Act,
1957. and Order VII Rule 1 of CPC, praying to grant a judgment and
decree on the following terms:
a) Permanent injunction restraining the defendant, by
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itself, its partners, men servants, agents, distributors, stockiest,
representatives or any one 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 ZINOVIT or any other trademark
deceptively similar to the plaintiff’s registered trademark or in any
other manner whatsoever.
b) 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 copyright infringement by using, in
the course of trade, labels/artistic works which are a substantial
reproduction of Plaintiffs' registered copyright under
Nos.112789/2017 and other registered copyrights in colour scheme,
get up and layout for their ZINOVIT for any tablets, syrup, drops etc.,
or in any other manner whatsoever;
c) 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 passing off and/or enabling them to pass off the
Defenant' products under the trademark ZINOVIT as and for the
plaintiffs' products by manufacturing, selling, or offering to sell,
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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 defendants be ordered to surrender to plaintiff's for
destruction of all products, labels, cartons, dyes, blocks, moulds,
screen print, packing materials and other materials bearing the
trademark ZINCOVIT label or any mark deceptively similar to
plaintiffs' trademark and artistic work ZINCOVIT label.
e.a preliminary decree be passed in favour of the plaintiffs'
directing the defendant to render account of profits made by use of
trademark and copyright in the artistic work ZINCOVIT label and a
final decree be passed in favour of the plaintiffs' 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.
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For Plaintiff :Mr.R.Sathish Kumar
For Defendant : Mr.N.R.Srinath
-----
JUDGMENT
This suit was filed with a grievance that the defendant is
infringing upon the trademark of the plaintiff's “ZINCOVIT” and using
a deceptively similar trademark “ZINOVIT”.
2.During the pendency of this suit, an attempt was made by
both the parties to settle the dispute amicably among themselves.
Accordingly, the parties entered into a memorandum of compromise
and the same has been signed by both the parties and their respective
counsel.
3.The relevant portions in the memorandum of compromise are
extracted hereunder:
“2.The Defendant approached the Plaintiff for
amicable settlement of the dispute and the Plaintiff
also agreed to settle the dispute on the following
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terms and conditions reduced hereunder:
a.That the Defendant undertakes that it will
not manufacture or market or otherwise deal with the
products bearing the trademark ZINKOVIT or any other
trademark identical or deceptively similar to the
Plaintiff's product ZINCOVIT at point of any point in
future whatsoever.
b.The defendant undertakes to change their
trademark ZINOVIT to OMEGAZINC and the carton of
the defendant as amended is hereunder:
Phridoxine Hydrochloride, Nicotinamide,
Cyanocobalamin, Folic Acid with Chromium, Zinc
and Selenium Tables.
OMEGAZINC Tables
Multi Vitamin & Multi Mineral (for Therapetic use)
The Plaintiff and Defendant pay that the above suit
may be decreed in terms of Prayers (a) (b) and (c) of
Paragraph 35 of the Plaint and the plaintiff is willing to
give up the reliefs under Prayers 35(d), 35(e) and 35(f)
of the Suit in view of this Memorandum of compromise.
c.That the defendant states that in the event of breach
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of this undertaking to this Hon'ble Court, they are
liable for punitive damages to the plaintiff in addition
to other reliefs available to the Plaintiff.
In the above circumstances, it is prayed that this
Hon'ble Court may be pleased to pass a judgment and
decree in terms of the memo of compromise and pass
such further or other order which may deem fit and
proper to the facts and circumstances of the case and
thus render justice”.
2.In view of the above, the suit is decreed in terms of the
memorandum of compromise and the memorandum of compromise
shall form part of the decree. Taking into consideration the facts and
circumstances of the case, there shall be no order as to costs.
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KP
Internet: Yes
Index : Yes/No
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH,J.
KP
C.S.(Comm.Div).No.1 of 2021
https://www.mhc.tn.gov.in/judis
20.12.2021
https://www.mhc.tn.gov.in/judis
