Madras High Court
M/S.Apex Laboratories Private ... vs Lucent & Torrent Healthcare ... on 6 January, 2023
C.S.No.884 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.01.2023
CORAM
THE HONOURABLE MR.JUSTICE C.SARAVANAN
C.S.No.884 of 2016
M/s.Apex Laboratories Private Limited,
Represented by its General Manager-Finance
N.Krishnan,
29, Third Floor, SIDCO Garment Complex,
Guindy, Chennai - 600 032. ... Plaintiff
Vs
1.Lucent & Torrent Healthcare Private Limited,
P-60, Omkar Marg,
Gandhi Nagar, Indore - 435 112.
2.Xylum Healthcare,
2-A, Parasram Marg,
Gandhi Nagar, Indore - 435 112. ... Defendants
Prayer: This Civil Suit is filed under Order VII Rule 1 of the Code of
Civil Procedure, 1908 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, prayed for a Judgment
and Decree:-
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C.S.No.884 of 2016
i) 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 "ZYNCOVIT" or any other trademark
deceptively similar to the plaintiff's registered trademark or in any other
manner whatsoever;
ii) 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
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 in colour scheme, get up and layout for their
"ZYNCOVIT" syrup, drops, tablets etc., or in any other manner
whatsoever;
iii) 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 passing off and/or enabling others to pass off the defendants'
products under the trademark "ZYNCOVIT" as and for the plaintiffs'
products by manufacturing, selling or offering to sell, distributing,
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C.S.No.884 of 2016
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;
iv) 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
"ZYNCOVIT" label or any mark deceptively similar to plaintiffs'
trademark and artistic work "ZINCOVIT" label.
v) 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 "ZYNCOVIT" 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.
vi) For costs of the suit.
For Plaintiff : Mr.R.Sathish Kumar
For Defendants : Mr.Rajesh Ramanathan
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C.S.No.884 of 2016
JUDGMENT
On the previous occasion i.e., on 04.01.2023, this case was
adjourned at the request of the learned Counsel for the parties hereto.
2. Today when the case is taken up for hearing, both the
learned Counsel for the respective parties submitted that the dispute
between the parties have been settled as early as July 2017. A copy of
the Joint Memorandum of Compromise filed between the parties is said
to have been filed before this Court vide SR.No.42655 of 2017 dated
24.11.2017.
3. The originals of the Joint Memorandum of Compromise is
not available on file/is not available in the Court Bundle. However, the
learned Counsel for the defendants confirms the photocopy to be the true
copy of the originals of the Joint Memorandum of Compromise entered
into between the parties, in which, the Authorized Signatory of the
Plaintiff and the Director & Proprietor of the Defendants have signed.
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C.S.No.884 of 2016
4. The content of the Joint Memorandum of Compromise reads
as under:-
“1.The defendant hereby acknowledges and admits
that the plaintiff is the proprietor of trademark and
copyright in the artistic work ZINCOVIT and ZINCOVIT
labels in relation to pharmaceutical, medical and
nutraceutical food supplements and other such vitamin
preparations.
2. The defendant acknowledges and admits and
recognizes, undertake not to infringe the same by using an
identical or a deceptively similar trademark or trademarks
or copyright in the artistic works at any time in future.
3. The defendant has been using the trademark
ZYNCOVIT for its nutritional supplements and hereby
undertakes to this Hon'ble Court that they either by
themselves or through their agents, representatives or heirs,
successors etc., shall NOT manufacture, market or in any
manner use the trademark ZINCOVIT, ZYNCOVIT or any
other identical or similar to the plaintiff's trademark either
phonetically, visually or structurally and further undertakes
not to manufacture, market or in any manner use the
trademarks ZINCOVIT or ZYNCOVIT or any other
trademark identical or deceptively similar to the plaintiff's
trademark.
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C.S.No.884 of 2016
4. The defendant hereby undertakes to this Hon'ble
Court that they either by themselves or through their agents,
representatives or heirs, successors etc., shall NOT
manufacture, market or in any manner use the copyright in
the artistic work of the plaintiff in ZINCOVIT labels used
presently or changed by the plaintiff at any point of time in
future.
5. The defendants hereby undertake that there are
no stocks available with them on this date and there are no
stocks despatched by them or available in the market as of
now.
6. The defendant submits to a decree as prayed for
by the plaintiff in paragraph 32(a), (b) and (c) of the plaint.
In view of the above terms of compromise, the plaintiff
agrees to give up the reliefs claimed in paragraph 32(d), (e)
and (f) of the plaint.
7. The above terms shall be binding on both
parties and shall include their heirs, legal representatives,
assigns or agents etc., and shall be strictly abided.
8. The parties shall bear their respective costs in
respect of the suit and they shall have no further claims
whatsoever against each other and the present compromise
fully and finally settles all the disputes forming subject
matter of the present suit. However, should the defendant be
found violating the terms of the compromise, it shall be
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C.S.No.884 of 2016
liable to pay damages to the plaintiff apart from such other
legal proceedings as may be initiated against them.
9. The suit shall be decreed on the terms of the
present Joint Memorandum of Compromise and the Joint
Memorandum of Compromise shall form part of the decree."
5. In view of the above, this Civil Suit is decreed in terms of
the Joint Memorandum of Compromise. No costs. The Joint Memo of
Compromise shall form part of the decree.
06.01.2023
Index : Yes / No
Internet : Yes / No
Speaking Order/Non-Speaking Order
arb
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C.S.No.884 of 2016
C.SARAVANAN, J.
arb
C.S.No.884 of 2016
06.01.2023
https://www.mhc.tn.gov.in/judis
