WOCKHARDT LTD. Vs. REMED HEALTHCARE PVT. LTD.

JUDGEMENT

(1.) This is an application under Order XXXIX Rules 1 and 2 CPC filed by the plaintiff for injunction to restrain the defendants from selling, offering for sale, etc. goods under the trade mark "Mericobal' or any other deceptively similar trade mark to the plaintiff's registered trade mark also being 'Mericobal'. The accompanying suit is filed by the plaintiff for injunction, rendition of accounts and for other connected reliefs.

(2.) As per the plaint, the plaintiff is one of the leading manufacturers of bio-pharmaceuticals, nutrition products, etc. in the country and the plaintiff through its predecessor has been carrying on its business for more than four and a half decades. The worldwide turnover of the plaintiff for the year ending 2012 is said to exceed Rs. 4,600 crores. The plaintiff Company has it's headquarter in India and full-fledged commercial operations in various countries abroad. It markets in excess of 475 products in the regulated markets. It is the contention of the plaintiff that in January 2005 it adopted a distinctive trade mark "Mericobal' in respect of pharmaceuticals, veterinary and sanitary preparations and other connected products in Class V and an application for registration was filed on 04.01.2005. The Registration Certificate dated 15.11.2005 was issued by the office of the Registrar of Trade Marks. Hence, it is averred that the plaintiff is the registered proprietor of the trade mark "Mericobal' in Class-V dated 04.01.2005 and the registration is valid and subsisting. The plaintiff is stated to have entered into a contract for manufacturing of their products "Mericobal Viva" with a company named Swiss Garnier Life Sciences. Requisite licence from the office of Drugs Licensing Authority, Himachal Pradesh was received on 19.07.2012 which licence is valid up to 26.04.2016. In December 2012, the plaintiff is said to have commenced marketing its product bearing the registered trade mark "Mericobal" with suffix "Viva". The product is intended for therapeutic use and contains as its primary ingredient Mecobalamin (Sustained Release) and also contains "Folic Acid", "Pyridoxine HCl" and "Vitamin D3". The said product of the Plaintiff is intended and recommended to take care of deficiencies, predominantly seen in patients who are diabetic, elderly and/or having cardiac issues.

(3.) It is averred that the marketing of the said products has been extensive, continuous and exclusive throughout the country on a very large scale and that in a short span of time, the product has acquired a reputation of being extremely safe and reliable by virtue of strict quality standards said to have been maintained by the plaintiff. The plaint narrates that all India sale figures for the months of December 2012 till February 2013 comes to a total of Rs. 43.9 lacs. On the strength of sales, it is stated that the popularity, vast goodwill and reputation of the plaintiff's products using the trade mark "Mericobal' with suffix 'viva' is huge. The fact that this has been achieved in such a short span of time is indicative of the tremendous amount of confidence which the trade mark and public has in respect of the plaintiff's trade mark. It is averred that in last week of March 2013, it came to the knowledge of the plaintiff for the first time that the defendants have commenced manufacturing and marketing a similar product bearing identical trade mark "Mericobal' to that of the plaintiff. Defendant No.1 is the manufacturer while defendant No.2 is responsible for its marketing. It is averred that both the defendants in connivance with each other are infringing the statutory rights of the plaintiff in its registered trade mark "Mericobal' and deriving illegal and unlawful gains at the cost of the plaintiff. It is averred that the product being marketed by the defendants with the trade mark "Mericobal' contains similar salt composition as that of the plaintiff. The plaintiff's product "Mericobal' with the suffix "viva" contains the additional salts "Folic acid", "Pyridoxine HCl" and "Vitamin D3" alongwith the salt "Mecobalamin" and if prescribed to a patient and not taken in error, then lack of "Folic acid" & "Pyridoxine HCl" may cause a certain type of anaemia, skin problems etc. and lack of "Vitamin D3" may cause increased risk of death from cardiovascular diseases, etc.