WIN MEDICARE PRIVATE LIMITED Vs.MARIGOLD PHARMA LTD. & ANR

NLS 2/2/2009/TM/Del

CS(OS) 550/2004

   RAJIV SAHAI ENDLAW, J.

  1. The plaintiff being the registered proprietor of the trademark BETADINE and ECZO-BETADINE in relation to medicinal and pharmaceutical preparations instituted the present suit for permanent injunction for restraining the defendant No.1 from manufacturing and the defendant No.2 from marketing the same product under the deceptively similar name BEECTADINE and for other ancillary reliefs. Vide ex-parte order dated 20th May, 2004, the defendants were restrained from manufacturing and marketing products under the trademark BEECTADINE or any other trademark which may be similar or deceptively similar to the trademark BETADINE of the plaintiff.
  1. The defendant No.2 was served with the summons/notice of the suit/application and on 19th January, 2005 informed that the defendant No.1 who was engaged in the business of manufacturing the infringing goods had closed shop since January, 2004 and consequently the defendant No.2 who was selling the goods manufactured by the defendant No.1 had also stopped marketing the said product. The plaintiff was unable to serve the defendant No.1 who was ultimately deemed to be served on report of refusal from the Sonipat address and was on 1st May, 2006 proceeded against ex-parte and remains ex-parte. The defendant No.2 also did not file any written statement and stopped appearing after appearing for a few dates and was vide order dated 15th February, 2007 proceeded against ex-parte and remains ex-parte. It is not the case of the plaintiff that the statement made on behalf of defendant No.2 on 19th January, 2005 was wrong.
  1. The plaintiff has led its ex-parte evidence by filing the affidavit by way of examination in chief of its constituted attorney Mr. Rajiv Bahel. The trademark registrations have been proved as Exhibit-P6 and the copyright registration as Exhibit-P10. The sample, brochure of the plaintiff has been proved as Exhibit-P5 and Exhibit-P7 and the photograph of the impugned product is Exhibit-P11. A perusal thereof shows that the defendant No.1 had copied not only the trademark and copyright of the plaintiff but also the packaging including cartons, tubes, colour scheme and the entire get up of the product of the plaintiff. The defendant No.1 obviously wanted to illegally enrich itself to the detriment of the plaintiff.
  1. The plaintiff has made out a case for grant of permanent injunction in terms of prayer paragraphs 18. (i) (ii) & (iii) of the plaint. As far as the other reliefs are concerned, the defendant No.1 having not been served, in my view no purpose would be served in directing the relief of delivery, particularly when the statement of the defendant No.2 to the effect that the defendant No.1 had stopped manufacturing in January, 2004 i.e. prior to the institution of the suit has not been controverted.
  1. As far as the relief of rendition and damages are concerned this court in Microsoft Corporation Vs. Yogesh Papat 2005 (30) PTC 245 (Del) has held that the plaintiff would be entitled to damages for the reason that it would be futile to direct the defendants to render accounts for the reason of the defendants carrying on business surreptitiously. Similarly, in Time Incorporated Vs. Lokesh Srivastava 2005 (30) PTC 3 (Del) also it was held that where infringement is found, punitive damages should follow to discourage such law breakers.
  1. The witness of the plaintiff has deposed that the plaintiff has suffered damages in the sum of Rs.5 lac. In the absence of the defendants having controverted the said evidence I do not find any reason to disagree with the same. However, the said damages are apportioned as Rs.4 lac against the defendant No.1 who was engaged in manufacturing and Rs.1 lac against the defendant No.2 who was engaged in selling the impugned products.
  1. Accordingly, a decree is passed in favour of the plaintiff and against the defendants in terms of paragraphs 18 (i) to (iii) of the plaint.
  1. A decree for damages in the sum of Rs.4 lac is also passed against the defendant No.1 and in the sum of Rs.l lac against the defendant No.2. The plaintiff shall also be entitled to costs from the defendants jointly and severally. The counsel’s fees assessed at Rs.25,000/-.