AGA MEDICAL CORPORATION Vs. FAISAL KAPADI

JUDGEMENT

(1.) The above-named plaintiff has moved this application under Order 39 Rules 1 & 2 read with Section 151, CPC seeking an ad-interim injunction restraining the defendants, their officers, servants, agents, promoters, dealers, distributors and any one acting for and on their behalf from, (i) manufacturing, selling, offering for sale any of the Occlusion devices including the Blockaid Devices which are a three-dimensional reproduction of the drawings of the plaintiff's Amplatzer products/devices thereby constituting infringement of the plaintiff's copyright in the said drawings, (ii) restraining the defendants from using the impugned brochures or any other material/brochures which are a substantial reproduction or a colourable imitation of the plaintiff's brochures thereby constituting infringement of copyright in the said brochures; and (iii) selling, offering for sale any of the Occlusion devices which resemble the plaintiff's devices in any manner and from making any representations that it or its products are in any way connected with the plaintiff, thereby constituting acts of passing of and unfair competition.

(2.) The germane facts leading to the filing of the present application are that the plaintiff has filed a suit for permanent injunction restraining infringement of copyright, passing of rendition of accounts, delivery up etc. against the defendants with the averments and allegations that it is a company existing under the laws of the United States having its Office at 682, Mendelssohn, Avenue, Colder Valley MN. 55427 and Mr. Krishan Lal Vadehra is the constituted attorney of the plaintiff company and has signed and verified the plaint for and on behalf of the plaintiff under the power of attorney dated 19.6.2002. The plaintiff claims to be a pioneer in the development and manufacture of trans-catheter technologies having being founded in the year 1995 with the sole aim of manufacturing and selling various devices which could be implanted into the human body, specially in relation to patients who suffer from cardiac problems. The devices have been invented by the plaintiff company after constant and untiring research. The various devices which are manufactured and sold by the plaintiff are, (a) Amplatzer Septal Occluder; (b) Amplatzer Muscular Occluder; (c) Amplatzer Duct Occluder; (d) Amplatzer PFO Occulder under the trade name " AMPLATZER". Some of these devices as Percutaneous Catheter Directed Intravasculr Occlusion Devices and Precutaneous Catheter Directed Occlusion devices are patented in US vide patent Nos. 5,725,552 and 5,846,261 respectively. It is stated that the plaintiff is also the owner of the drawings of the product which are the original artistic work of the plaintiff within the meaning of Copyright Act, 1957 and the plaintiff has registered its brochures in the United States Copyright Office vide registration dated 10.7.2002 and the same enjoys reciprocal protection in India in view of the international Copyright Order, 1999.

(3.) It is further averred by the plaintiff that it is selling its products including the said devices in various countries of the world and has started selling the same in India ever since January, 1998 and the devices are being used in all leading hospitals of India which include CMC Vellore, AIMS, GB Pant, Escorts Heart Institute, Batra Hospital, Manipal Hospital, Jayadeva Institute of Cardiology, Bangalore, Appollo Hospital etc. and claims that the plaintiff owns the following rights which are protectable under the statutes and under the common laws in India: (a) Copyright in the brochures. (b) Copyright in the drawing of the various devices. (c) Common law rights in the products.