ALBATROSS PHARMA Vs. CIPLA LIMITED

JUDGEMENT

(1.) Instant appeal embraces in its fold an issue relating to legal implication arising out of non- compliance with requirement of proviso to Order XXXIX Rule 3 CPC in regard to recording of reasons for grant of an ex parte ad interim injunction.

(2.) The appellant/defendant is aggrieved by an ex parte order dated 28th June, 2005 restraining it from manufacturing and selling etc. its pharmaceutical preparation under the trademark 'MINPECIA' or any other trademark which is identical or deceptively similar to respondent/plaintiff's trademark 'FINPECIA'. The aforesaid ex parte order was passed on a suit for permanent injunction against passing off and rendition of accounts etc. filed by the respondent/plaintiff, M/s Cipla Limited, a company incorporated under Indian Companies Act which adopted the trademark 'FINPECIA' in the year 1997 in respect of one of its pharmaceutical preparations and launched its pharmaceutical products under the said trademark in the month of June 1999. It applied for registration of the trademark 'FINPECIA' which is pending consideration. For the last five years the respondent/plaintiff is alleged to have been using its said trademark 'FINPECIA' continuously and exclusively throughout India.

(3.) In the third week of November, 2004 the respondent/plaintiff came to know for the first time that the appellant/defendant was claiming to be using the trademark 'MINPECIA' in respect of pharmaceutical preparations, on receipt of a copy of a notice of opposition filed by it against respondent/plaintiff's application for registration of an identical trademark 'MINPECIA' made on 9th December, 1998. On receiving the said notice of opposition, Legal Department of the respondent/plaintiff telephonic ally got in touch with the proprietor of the appellant/defendant firm asking him to immediately desist from using the trademark 'MINPECIA'. It is alleged that the proprietor of the appellant/defendant firm assured that it would immediately stop further production of impugned pharmaceutical preparation and that old stocks would be exhausted in 6/7 months. The appellant/defendant is further alleged to have had also agreed to withdraw the opposition filed by it against registration of trademark 'MINPECIA' applied for by the respondent/plaintiff. On such assurance, it is pleaded, the respondent/plaintiff did not pursue the matter further as it was under the impression that the appellant/defendant would honour its commitments.