Madras High Court
Sun Pharmaceutical Industries ... vs Cipla Ltd on 6 July, 2021
O.S.A.(CAD) Nos.8 to 13 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 06.07.2021
CORAM :
THE HON'BLE MR.SANJIB BANERJEE, CHIEF JUSTICE
AND
THE HON'BLE MR.JUSTICE SENTHILKUMAR RAMAMOORTHY
O.S.A.(CAD) Nos.8 to 13 of 2021
Sun Pharmaceutical Industries Ltd.
Door No.8, Plot No.3,
Old Tower Block Street, Appellant in
Nandanam, Chennai 35 .. all OSAs
Vs
CIPLA Ltd.,
106A, 106/108 Ground and First
Alapakkam Main Road, Alapakkam
Chennai 116
also at
Cipla House, Peninsula Business Park,
Ganpatrao Kadam Marg, Respondent in
Lower Parel, Mumbai 400 013 .. all OSAs
Appeals filed against the common order of this Court dated
27.05.2021 in A.Nos.1982 of 2021 in O.A.No.283 of 2021, A.No.1980
of 2021 in O.A.No.282 of 2021, O.A.Nos.283, 282 and 281 of 2021
and A.No.1983 of 2021 in O.A.No.281 of 2021 respectively, in
C.S.No.176 of 2021.
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O.S.A.(CAD) Nos.8 to 13 of 2021
For Appellant : Mr.Satish Parasaran,
Senior Counsel,
for Mr.R.S.Rajesh
For Respondent : Mr.P.S.Raman,
Senior Counsel,
for Mr.Premchandar
COMMON JUDGMENT
(Made by the Hon'ble Chief Justice)
The matter pertains to the get-up and colour scheme of the
packaging material used by the appellant in producing capsules used
for treating respiratory problems.
2. The appellant is the defendant in the suit. The judgment and
order impugned dated May 27, 2021, insofar as it dismisses the
defendant's vacating applications and makes the ad interim order
absolute, is questioned on the ground that there are observations in
the judgment which seriously prejudice the defendant and such
observations were irrelevant in the context of the final order that has
been passed.
3. It is apparent that the defendant sought to abandon the
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O.S.A.(CAD) Nos.8 to 13 of 2021
colour scheme and get-up used in its packaging material and adopt
altogether different cartons or packaging material. Indeed, the
defendant offered to abandon the packaging material objected to by
the plaintiff. However, it is not for the Court to grant an advance
permission to a person seeking to change the get-up or colour scheme
or packaging material upon an infringement or passing-off action being
brought; it is for the parties to agree on the change. The role of the
Court is only to consider whether one offends the use of the other
upon an action in such regard being brought.
4. The plaintiff complains that the injunction ultimately issued
does not cover the entire ambit of the injunction sought. According to
the plaintiff, a limited ad interim order was granted and since the Court
was to consider the matter after notice, the plaintiff was satisfied with
the limited ad interim order in the hope that the larger interim order
sought would be granted at the final stage of the interlocutory
proceedings. The plaintiff also points out that some of the observations
in the impugned judgment will reflect that the trial Court intended to
pass a larger injunction, but the operative part of the order restricts
the injunction to what had been initially passed instead of
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O.S.A.(CAD) Nos.8 to 13 of 2021
incorporating the larger prayer made by the plaintiff.
5. Insofar as the order impugned continues the ad interim order
passed, the same does not call for any interference. However, there
are observations in the impugned judgment to which there is no
sequitur; in the sense that these observations do not find any
reflection in the operative part of the order. To the extent that such
observations are contained in the impugned judgment, they may
prejudice the defendant. Viewed from another angle, to the extent that
these observations have not culminated in a larger injunction, the
plaintiff may be aggrieved thereby, though there is no appeal preferred
by the plaintiff as of now.
6. Accordingly, in the interest of justice, the defendant is
permitted to apply afresh for vacating the subsisting order of
injunction and for some of the observations that the defendant finds
unpalatable to be removed from the judgment. If a fresh application
for vacating the interim order is filed by the defendant, wherein it will
be open to the defendant to rely on additional or further material, the
trial Court should consider the matter afresh without being unduly
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O.S.A.(CAD) Nos.8 to 13 of 2021
influenced by the judgment and order impugned herein. Similarly, it
will be open to the plaintiff to seek a larger injunction than the one
passed at the ad interim stage and continued by the interim order.
Again, the trial Court will consider the prayer for larger injunction
uninfluenced by the judgment and order impugned herein.
7. It is made clear that nothing in this order should prejudice
either the plaintiff or the defendant at the further hearing at the
interlocutory stage. O.S.A.(CAD) Nos.8 to 13 of 2021 and
C.M.P.Nos.9881, 9883, 9888, 9890, 9904 and 9906 of 2021 are
disposed of without any order as to costs.
(S.B., CJ.) (S.K.R., J.)
06.07.2021
Index : Yes/No
kpl
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O.S.A.(CAD) Nos.8 to 13 of 2021
THE HON'BLE CHIEF JUSTICE
AND
SENTHILKUMAR RAMAMOORTHY, J.
(kpl)
O.S.A.(CAD) Nos.8 to 13 of 2021
06.07.2021
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