AVIAT CHEMICALS PRIVATE LIMITED Vs. MAGNA LABORATORIES GUJARAT

JUDGEMENT

(1.) Plaintiffs are two companies, Aviat Chemicals Pvt. Ltd. and NBZ Pharma Ltd. By virtue of the present suit they seek a permanent injunction to restrain infringement of the registered trade mark i.e. MULTIVITAMIN INFUSION (for short MVI), passing off, and rendition of accounts against the defendant no.1 Magna Laboratories (Gujarat) Pvt. Ltd.

(2.) . Some of the relevant facts are that plaintiff no.1 contends that it is carrying on business as manufacturers and dealers of pharmaceutical and medicinal preparations. Plaintiff no.2 is also a company incorporated under the Companies Act carrying on business of manufacturing and selling pharmaceutical medicinal preparations. The grievance of the plaintiffs is that defendants are infringing the registered trade mark MVI and passing off with respect to the trade mark referred to above in relation to their medicinal and pharmaceutical preparation. Plaintiff no.1 is pleaded as proprietor of the trade mark MVI in respect of medicinal and pharmaceutical preparations. Around 22/09/1958 US Vitamin Corporation (Arlington Funk Laboratories) USA filed an application for registration of trademark MVI and had obtained the registration of the trade mark. The registration of the trade mark has been assigned from time to time and plaintiff no.1 is the present registered proprietor of the said trade mark. It is shown as subsequent proprietor in the register of Trademarks. By a license user agreement of 6/03/1999 the first plaintiff had granted in favour of plaintiff no.2 a non-exclusive license and right to use the trade mark MVI. Plaintiff no.2 is manufacturing and selling preparations under the trade mark MVI. The plaintiffs trade mark MVI is printed in capital bold letters in blue colour. They have established a formidable reputation and goodwill.

(3.) . It has been further pleaded that by a license/registered user agreement of 28/05/1996 plaintiff no.1 had granted in favour of the defendant a non-exclusive license and right to use the trade mark MVI. Defendants were manufacturing and selling medicinal preparation under the trade mark MVI as licensee of plaintiff no.1. Defendants had agreed to pay royalty as per terms and conditions of the agreement. Defendants committed several breaches of the terms and conditions and default in making the payments. The result was that plaintiff no.l by their advocates letter of 22/01/1999 terminated the license/registered user agreement of 28/05/1996. Defendant was called upon to desist immediately from manufacturing and selling the medicinal preparations under the trade mark MVI. It had been asserted that in the third week of April 2002 the plaintiff no.1 came across medicinal preparations bearing the trade mark MVI which was manufactured by the defendants. In spite of the termination of the license it is claimed that defendant is surreptitiously continuing to manufacture, sell and prepare the medicines under the trade mark MVI. The medicines were purchased by Mr. Hem Chander Kandpal, a representative of plaintiff no.1 in presence of Dasa Ram, Notary Public. On basis of these broad facts the above said reliefs are being claimed. During the pendency of the suit by virtue of IA 4359/2001 the plaintiff seek an ad interim injunction in this regard.