GLAXO GROUP LTD Vs. S D GARG

JUDGEMENT

(1.) This is a suit for permanent injunction and rendition of accounts. Plaintiff No.1 Glaxo Group Ltd. is a company incorporated in United Kingdom, whereas plaintiff No.2 GlaxoSmithKline Pharmaceuticals Ltd. is a company incorporated under the Companies Act, 1956. Both the plaintiffs are members of GlaxoSmithKline Groups of Companies of which GlaxoSmithKline plc. is the parent company. The plaintiffs are engaged in manufacturing and marketing a wide range of products including pharmaceutical and medicinal preparations throughout the world and are one of the largest pharmaceutical and healthcare companies and had worldwide sales of 21.44 billion in the year 2000.

(2.) The trademark BETNOVATE is registered in India in the name of plaintiff No.1 in class 5 since 5th December, 1963 in respect of pharmaceutical, veterinary and sanitary substances and is an invented word having no dictionary meaning and connoting exclusively the goods of the plaintiffs. The trademark is stated to be registered in more than 30 countries in the name of plaintiff No.1 and is being used for creams, ointment and lotion as also for topical treatment of skin irritations, such as redness, itching and swelling of skin conditions. The sale of goods by plaintiff No.2 under the name BETNOVATE in India amounted to Rs.7253.30261 lacs, Rs.7896.16792 lacs and 7662.53576 lacs during the years 2001, 2002 and 2003 respectively. The plaintiffs claimed to have spent Rs.10.2 millions, 13.1 millions and 2.5 millions in the years 1999, 2000 and 2001 respectively on the promotion of this trademark. BETNOVATE is being sold by the plaintiffs in different variations including BETNOVATE-N which is the combination of betamethasone Valerate and Neomycin and BETNOVATE-C which is the combination of Betmethasone and Clioquinol Cream BP. The plaintiffs claim copyrights under Section 2(c) of the Copyright Act in the outer cartons and tubes in which BETNOVATE-N and BETNOVATE-C are sold by them.

(3.) It is alleged that in or about 2004, the plaintiffs came to know that the defendants had copies the colour scheme of BETNOVATE-N for their product BECNATE-N and that of BETNOVATE-C for their product BECNATE-C. The case of the plaintiffs is that the mark BECNATE is deceptively similar to their registered trademark BETNOVATE and the defendants are using the mark BECNATE in respect of identical goods thereby causing infringement of their registration.