GLAXO SMITH KLINE PHARMACEUTICALS LIMITED Vs. BIOVET FORMULATIONS

JUDGEMENT

(1.) Plaintiff has filed the present suit for permanentinjunction, passing off of the trademark and copyright, rendition of accounts and delivery up against the defendant.

(2.) Briefly the facts are that the plaintiff is engaged inter alia in the manufacture, marketing and distribution worldwide of a wide range of products known for their efficacy, reliability and excellent quality. The plaintiff is manufacturing and marketing various pharmaceutical and veterinary products in India. The present suit concerns the statutory right and common law rights under the trademark "NILVERM" and also the copyright, artistic work of the NILVERM pack and also the violation thereof by the defendant.

(3.) The plaintiff is the proprietor of the trademark NILVERM by way of assignment deed dated 31st March, 1999. The application for registration of the trademark is pending under Application No. 525753 in Class 5 as on 27th November, 1992 in respect of pharmaceutical preparation and substance for veterinary use. After the assignment the said product is being manufactured and marketed by the plaintiff which includes the veterinary drug formulation based on the bulk drug Tetramisole Hydrochloride marketed by the plaintiff company under the trademark NILVERM. It is stated that NILVERM design container label is also registered as a copyright under No. A-44350/84. By virtue of registration of NILVERM copyright under the Copyright Act it is the exclusive right of the plaintiff to use and reproduce the said art work and to exclude and prohibit any unauthorised reproduction as it would amount to infringement of NILVERM copyright in said art work under Section 51 of the Copyright Act. The characteristic features of the said art work of NILVERM tin which is registered under the Copyright Act are as follows: (i) The base of the packing material is in white colour. (ii) Two horizontal green bands of equal dimensions on the top. (iii) The name of the chemical composition of the drug Tetramisole in green colour and the style and size of the English alphabet in it. (iv) Five different kinds of animal heads in circles with green colour background. (v) The size and colour of English alphabets vised in describing the brand name and directions for use printed in English in black colour. It is stated that the purpose of registration of the copyright and the said artistic work on NILVERM tin is to use the exclusive design container label to indicate to customers who are mostly illiterate shephards/farmers that the products sold in such containers are the products of the plaintiff company. It is stated that the plaintiff has been using the said trademark as well as copyright since the year 1998 bearing the trademark NILVERM. The said trademark has acquired tremendous reputation amongst the general public and has been exclusively used and advertised amongst the general public and the said trademark as well as the artistic work is exclusively associated with the plaintiff and no one else. The plaintiff has sold their products bearing the said trademark into crores of rupees. The plaintiff is vigilant about the trademark/ copyright in respect of tin container/packing material of NILVERM and it has taken legal action against the infringing parties from time-to-time.