Madras High Court
M/S.Apex Laboratories Pvt. Ltd vs Sree Sai Varsha Nutritions on 23 June, 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated 23.06.2022
CORAM
The Hon'ble Mr. Justice SENTHILKUMAR RAMAMOORTHY
Civil Suit No.8 of 2021
(Comm. Suits)
M/s.Apex Laboratories Pvt. Ltd.
29, III Floor, SIDCO Garment Complex,
Guindy, Chennai-600 032. ... Plaintiff
vs.
1. Sree Sai Varsha Nutritions
Plot No.34, L.N.Colony,
UPPAL, Hyderabad-500 039
Rep. By its Proprietor,
K.Gangadhar Reddy
2. Vyshnavi Pharma
2-4-81, Medical Complex,
Rajagiri Kota, narasaropet-522 601
Guntur District,
Rep. By its Partner, N.Ramalingeswara Rao
3. Sri Vari Pharma,
120/43, Rasappa Chetty Street,
Parrys, Chennai-600 003. ... Defendants
The suit is filed under Order VII Rule 1 CPC and Order IV Rule 1
of O.S. 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
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grant a judgment and decree (a) a permanent injunction restraining the
Defendants, by itself, its partners, men, servants, agents, distributors,
stockists, representatives or any one claiming through or under them from in
any manner infringing the plaintiff's registered trademark ZINCOVIT under
No.487453 in class 5 by using a deceptively similar trademark ZINKOWIT
or any other trademark deceptively similar to the plaintiff's registered
trademark or in any other manner whatsoever; (b) a permanent injunction
restraining the Defendants, by itself, its partners, men, servants, agents,
distributors, stockists, 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 No.A-54243/1997 in
colour scheme, get up and layout for their ZINKOWIT syrup, drops tablets
etc., or in any other manner whatsoever; (c) a permanent injunction
restraining the Defendants, by itself, its partners, men, servants, agents,
distributors, stockists, 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 No.A-91339/2011 for
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Page No.2 of 7
their ZINKOWIT syrup, drops etc., or in any other manner whatsoever; (d) a
permanent injunction restraining the Defendants, by itself, its partners, men,
servants, agents, distributors, stockists, 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 trademark ZINKOWIT
as and for the plaintiffs' products by manufaturing, 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: (e) 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 ZINKOWIT label or any mark deceptively
similar to plaintiffs' trademark and artistic work ZINCOVIT label; (f) 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 ZINKOWIT label and a final decree be passed
in favour of the Plaintiffs for the amount of profit thus found to have been
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made by the Defendants after the latter have rendered accounts; and (g) for
costs of the suit.
For Plaintiff : M/s.R.Sathish Kumar
For Defendants : M/s.S.Vijayaraghavan for D3
M/s.V.Sivakumar for D2
JUDGMENT
The suit was filed seeking relief in respect of alleged trademark
and copyright infringement and passing off. Subsequently, the plaintiff
settled the dispute with the third defendant. Since the first and second
defendants did not appear, they were set ex parte. Accordingly, the case was
posted for recording ex parte evidence. The plaintiff adduced evidence by
examining Mr.D.Jude F.L.S.Durai Pandian, the Chief Financial Officer of the
plaintiff, who was examined as PW1. In course of examination-in-chief of
PW1, seven documents were exhibited as Ex.P1 to P7. These documents
include the certified copy of the Trade Mark Registration Certificate bearing
No.487453 in class 5. It also includes the plaintiff's original carton, which
was exhibited as Exs.P5 and P6 and the defendant's carton which was
exhibited as Ex.P7. The plaintiff's registered trade mark is “ZINCOVIT”,
which is registered in class 5, and the impugned mark is “ZINKOWIT”.
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2. On considering the evidence on record and, in particular, by
comparing Ex.P5 and Ex.P7, it is clear that the defendant's mark is near
identical to the plaintiff's mark. Consequently, the plaintiff is entitled to
succeed. Since the first and second defendants remained ex parte, the
accounts are not available for purpose of considering the relief claimed in
paragraph 28(f) or for payment of additional court fee in respect thereof.
Therefore, the relief claimed in paragraph 28(f) is rejected.
3. Hence, C.S.No.8 of 2014 is decreed in terms of the reliefs
prayed for in paragraph 28 (a), (b), (c), (d) and (e) of the plaint. On the loser
pays principle, the first and second defendants shall pay costs assessed in a
sum of Rs.1,50,000/- to the plaintiff. This shall include court fees, lawyer's
fees and other expenses.
23.06.2022
Index : Yes
Internet : Yes
kal
Plaintiffs' witnesses:
Mr.D.Jude F.L.S.Durai Pandian - PW1
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Documents exhibited by the Plaintiff:
Sl.No Exhibi Date Particulars of Documents
ts
1. Ex.P1 19.01.2018 The copy of Board Resolution dated
19.01.2018. (Original verified and returned)
2. Ex.P2 Certified copy of Trade mark Registration
under No.487453 in class 5.
3. Ex.P3 12.11.2013 The original news report in the daily,
Dinakaran, Puduchery edition.
4. Ex.P4 The copy of the letter by the 1st defendant along
with the FIR filed in the Vikaravandi Police
Station.
5. Ex.P5 The original Carton of the plaintiff
6. Ex.P6 The original Carton of the plaintif.
7. Ex.P7 The photo of the defendants Carton.
SKRJ
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SENTHILKUMAR RAMAMOORTHY, J.
kal
Civil Suit No.8 of 2014
(Comm. Suits)
23.06.2022
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