Madras High Court
M/S. Apex Laboratories Pvt. Ltd vs Grownmax Medicare Private ... on 4 March, 2021
C.S.(Comm. Div) No.433 of 2018 (A)
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 04.03.2021
CORAM :
THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN
C.S. (Comm.Div) No.433 of 2018 (A)
and O.A.Nos. 618 to 620 of 2018
M/s. Apex Laboratories Pvt. Ltd.,
29, III Floor, SIDCO Garment Complex,
Guindy, Chennai - 600 032,
Represented by its Authorised Signatory,
D.Jude F.L.S.Durai Pandian. ... Plaintiff
Vs.
1. Grownmax Medicare Private Limited,
No.495, Narayan Peth,
Pune-411 030,
and also at B-159, 2nd Floor, DDA Shed,
Okhala Industrial Area, Phase-I,
New Delhi-110 020.
2. Samson Laboratories Private Limited,
152, Sansiwala, Barotiwala,
Distt. Solan, Himachal Pradesh - 174 103. ... Defendants
Prayer:
Civil Suit is filed under Order VII Rule 1 of CPC and Order IV Rule
1 O.S. Rules, read with Sections 27, 28, 29, 134, 135 of the trademarks
Act, 1999 and Sections 51, 55, 62 of the Copyrights Act, 1957, (a)
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C.S.(Comm. Div) No.433 of 2018 (A)
permanent injunction restraining the defendants, by 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 by using a deceptively similar
trademark ZINKOACT or any other trademark deceptively similar to the
plaintiff's registered trademark or in any other manner whatsoever;
(b) permanent injunction restraining the defendants, 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.A-54243/1997 and A-91339/2011 and A-
108878/2014 and A-115854/2017 in colour scheme, get up and layout for
their ZINKOACT for any syrup, tablets etc., or in any other manner
whatsoever;
(c) permanent injunction restraining the defendants, 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 others to pass off the defendants' products under the
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C.S.(Comm. Div) No.433 of 2018 (A)
trademark ZINKOACT as and for the plaintiffs' 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 defendants be ordered to surrender to plaintiffs for
destruction of all products, labels, cartons, dyes, blocks, moulds, screen
prints, packing materials and other materials bearing the trademark
ZINKOACT 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 defendants to render account of profits made by use of
trademark and copyright in the artistic work ZINKOACT 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 defendants after the latter have rendered
accounts;
(f) for costs of the suit.
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C.S.(Comm. Div) No.433 of 2018 (A)
For Plaintiff : Mr.R.Sathish Kumar
For D1 : Mrs.Smitha Manu
For D2 : Set Ex-parte
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JUDGMENT
There are two defendants. The 1st defendant had been served on
21.08.2018 and the 2nd defendant had been served on 20.07.2018.
Learned counsel had entered appearance on behalf of the 1st defendant
and written statement had also been filed. In the meanwhile, the
Interlocutory Application had been argued and thereafter, an Original Side
Appeal had also been filed. The parties to the suit in that stage were
primarily the plaintiff and the 1st defendant. Subsequently, a
Memorandum of Compromise had been filed which had been entered into
between the plaintiff and the 1st defendant. This Memorandum of
Compromise dated 10.01.2021 had been presented into Court on
15.02.2021. Thereafter, an Additional Memorandum of Compromise had
been entered into wherein there has been a specific reference to the
Original Side Appeals.
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C.S.(Comm. Div) No.433 of 2018 (A)
2. Heard Mr.R.Sathish Kumar, learned counsel for the plaintiff.
3. The 1st defendant is represented by counsel but the 2nd
defendant has not answered the suit summons though they had been
served. The name and address of the 2nd defendant is printed in the cause
list. They have also not filed written statement. Since they had not
answered the suit summons, the 2nd defendant is set ex-parte.
4. By the Memorandum of Compromise dated 10.01.2021, the
1st defendant has stated that they would not manufacture or market or
otherwise deal with the products bearing the trade mark ZINKOACT.
They have also undertaken that they would also not apply for registration
or claim right over the trade mark ZINKOACT. They had agreed to
change their trade mark to ZEOACT.
5. In view of such undertaking, they had submitted that the suit
may be decreed with respect to reliefs A, B and C. The plaintiff also
agreed to give up the reliefs D, E and F.
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C.S.(Comm. Div) No.433 of 2018 (A)
6. By the Additional Memorandum of Compromise, the same
terms and undertakings have been reiterated and additionally it had been
mentioned that O.S.A.Nos.96 and 98 of 2020 had been filed by the
plaintiff against the interim order dated 19.06.2019 and has also been
withdrawn.
7. In view of the Memorandum of Compromise and Additional
Memorandum of Compromise:
(i) the suit is partly decreed with respect to the 1st defendant with
respect to reliefs A, B and C and the suit is dismissed with respect to
reliefs D, E and F. No order as to costs.
(ii) Since the 2nd defendant had not responded to the suit summons
issued by this Court and had been set ex-parte, the suit is decreed as
against the 2nd defendant with costs.
(iii) Consequently, connected Applications are closed.
04.03.2021
msm
Index : Yes
Internet : Yes
Speaking order : Yes/No
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C.S.(Comm. Div) No.433 of 2018 (A)
C.V.KARTHIKEYAN, J.
msm
C.S. (Comm.Div) No.433 of 2018 (A)
04.03.2021
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