WIN MEDICARE PVT LTD Vs. K PHARMACEUTICALS WORK

JUDGEMENT

(1.) This suit was instituted for the infringement of copyright, passing off, damages, rendition of accounts and delivery up, etc. The defendant initially appeared and stated that he will file a written statement. However, subsequently by an order dated 4.5.2005 the defendant was directed to be proceeded with ex parte and thereafter he has not entered appearance in this case. The plaintiff was directed to lead ex parte evidence which he has led in the form of an affidavit and has also filed documents which are exhibited as Ex. P1 to P11. The suit was filed and instituted on behalf of the plaintiff by Mr. Rajiv Behl who is the constituted attorney of the plaintiff. His power of attorney being exhibited as Ex. P1.

(2.) In September, 1990 the plaintiff started manufacture and marketing of medicinal preparations one of them being BETADINE Microbicidal Solution, consisting of a Povidone-Iodine combination, and the same is currently being marketed by the plaintiff in pack sizes of 50 ml, 110 ml, 500 ml and 1 litre bottles under the trademark BETADINE and has been extensively advertised by the plaintiff. Sample advertisements, brochures, pamphlets and other literature relating to the plaintiff's products are exhibited as Exs. P2 and P3. Some invoices of the plaintiff relating to the sale of the BETADINE Solution bottles are exhibited as Ex.P4. The BETADINE Microbicidal Solution IP of the plaintiff is stated to be marketed in bottles with distinctive labels bearing a unique colour combination, layout and getup. The said labels qualifies as original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957 and is also registered as such in favour of the plaintiff. The Copyright Registration Certificate in favour of the plaintiff bearing Registration No. N-64764/2003 dated 16.7.2004 is also exhibited as Ex. P7. The defendant manufactures Microbicidal Solutions in bottles with a label having an identical getup, layout and colour scheme as that of the plaintiff's BETADINE Solution bottles. A cash memo detailing the purchase of defendant's products is also exhibited as Ex. P8 and the legal notice sent to the defendants as well as the A.D. card are exhibited as Ex. P10 and PI 1 respectively.

(3.) It is also clear that the plaintiff has been using the following colour combination on its BETADINE Microbicidal Solution: (a) A white background with dark blue lettering printed on it. (b) A sky blue stripe followed by a navy blue stripe on which the word Standardised is printed in bold.