PANACEA BIOTEC LIMITED Vs. ELPRAGE PHARMA

JUDGEMENT

(1.) The plaintiff company is carrying on the business of manufacturing and selling "drugs and pharmaceuticals". They had, obtained a Drug Licence regarding the use of the trade mark , NIMULID in January, 1995. This medicine, is used for ailment of inflammatory control, analgesic and antipyretic etc. In a short span of three years this medicine became popular with the patients, doctors, hospitals and other medical institutions all over India. The medicine under the trade mark NIMULID in tablet form is packed and offered for sale in distinctive packing cartons/packing wrappers/packing strips having a unique colour combination. The plaintiffs claim to be the owner of exclusive proprietor/rights with respect to the artistic work on the cartons/blister strips under the provisions of Indian Copyright Act, 1957 (in short the Act). The plaintiffs on account of the quality of the product acquired unique goodwill and reputation with respect to its NIMESULIDE tablets under the trade mark NIMULID. Since November, 1995, various other companies tried to copy the trade mark and the artistic design work and colour scheme of the cartons and the bllster strips and pass off NIMESULIDE tablets.in the market as that of the plaintiffs. The plaintiffs had filed suits for injunction against various companies to protect their proprietory rights. Some of the suits, on giving undertaking by the defendant companies, ended in compromise decrees. whereas in others, plaintiffs have successfully obtained injunctions-restraining them from using the trade mark and artistic design work of packing cartons and strips which were identical and deceptively similar to that of the plaintiffs.

(2.) It was in January, 1996 that plaintiffs came to know that defendants started manufacturing and selling NIMESULIDE, tablets packed in blister packing and packing strips consisting of yellow and blue colour combination amounting to infringement of plaintiff's copyright as well as passing off their goode as those of plaintiffs.

(3.) The plaintiffs company filed the present suit for injunction, passing off, infringement of,copyright and damages etc. and obtained an ex-parte ad-interim injunction on 24/6/1999 restraining the defendants from using packing boxes, blister packing and packing strips consisting of yellow and blue colour combination in respect of NIMESULIDE tablets. A Local Commissioner was also appointed to take into custody the infringing material of the defendants. Notice of the suit and the injunction application was served on the defendants. since despite service defendants failed to put in appearance, they were proceeded ex-parte.