KEE PHARMA LIMITED Vs. BIG M HEALTHCARE

JUDGEMENT

(1.) Plaintiff has filed present suit for permanent injunction, restraining infringement of trademark, rendition of accounts of profits/ damages delivery up acts of unfair competition etc. Summons were issued in the suit. While issuing notice in the application 12685/2010 defendants their assigns in business, distributors and dealers were restrained from manufacturing, selling, advertising, directly or indirectly pharmaceutical products under the impugned trade mark "DISER" or any other mark, which is deceptively similar to the plaintiff's trade mark. As despite service none appeared on behalf of the defendants, nor any written statement was filed, the defendants were proceeded ex parte by order dated 05.01.2012. Plaintiff has filed affidavit by way of evidence of PW-1, Sh.Sunil Seth, which has been exhibited as Ex.PW-1/A. PW-1 has deposed that the plaint was instituted by Ms. Uma Sachdev, the Board Resolution dated 06.08.2010 passed by plaintiff company in her favour is already on record on page No. 112 of List of Document dated 16.09.2010 and the same is exhibited as Ex. PW 1/1. PW-1 has deposed that the Memorandum of Association and Articles of Association of the Plaintiff Company is already on record on page No. 74-11 of List of Document dated 16.09.2010 and the same are exhibited as Ex PW 1/2. It has also been deposed that the plaintiff is carrying on business of trading of pharmaceuticals and medicinal preparations for past several decades and one of the medicinal preparations marketed by the plaintiff is an anti inflammatory analgesic drug, which is a combination of Serratiopeptidase & Diclofenac Potassium, under the trade mark DISER, which takes care of pain & inflammation. PW-1 deposed that the circular dated 05.06.2000 issued by the plaintiff to its distributor that the plaintiff has launched its medicine under the mark DISER is already on record on page No. 17 of List of Document dated 16.09.2010 and the same is exhibited as Ex.PW 1/3. It is also deposed that handout of the plaintiff product under the trade mark DISER is already on record on page No. 72-73 of List of Document dated 16.09.2010 and the same is exhibited as Ex.PW 1/4. The ISO certificate given the plaintiff company is already on record on page No. 18 of List of Document dated 16.09.2010 and the same is exhibited as Ex. PW 1/5.

(2.) This witness has next deposed that the plaintiff's said trade mark DISER is a coined and invented mark thereby enjoying highest degree of inherent distinctiveness. It is also deposed that the trade mark DISER has been extensively and commercially used by the plaintiff in the course of trade of medicinal preparations since June 2000. Plaintiff's medicine strip-DISER is already on record on page No. 117 of List of Document dated 16.09.2010 and the same is exhibited as Ex.PW 1/6. The said trade-mark has thus become distinctive of the source and trade origin of drugs and medicinal preparations manufactured and marketed by the plaintiff exclusively. PW-1 has deposed that the Drugs Licence dated 28.03.2000 in favour of plaintiff's earlier manufacturer Lincoln Pharmaceuticals Ltd. is already on record on page No. 19-24 of List of Document dated 16.09.2010 and the same is exhibited as Ex. PW 1/7.

(3.) PW-1 has also deposed that the trade mark DISER is registered in India in the name of the plaintiff. The details of such registrations are as under: