SMITHKLINE BEECHAM PLC Vs. S VENKATAIAH

JUDGEMENT

(1.) By an order dated 23.03.2005 this court had directed issuance of summons to the defendants. By order dated 08.07.2005, the defendants 1 and 2, not having appeared despite service of summons, were ordered to be proceeded with ex parte. By order dated 08.08.2005, the defendant No.3 also being absent despite service was directed to be proceeded with ex parte. In this manner, all the defendants 1 to 3 have been proceeded with ex parte. The plaintiff was directed to file his evidence through his affidavit and also to file his documents within four weeks. The plaintiff did so.

(2.) The plaintiff No.1 is a company organised and existing under the laws of U.K. and the plaintiff No.2 is incorporated under the Indian Companies Act, 1956. The plaintiff No.2 is a hundred percent subsidiary company of the plaintiff No.l. The plaintiffs are well-known manufacturers of pharmaceutical products. The plaintiffs have proprietory rights in respect of the manufacture and sale of, inter alia, 'CROCIN1 and 'CROCIN PAIN RELIEF in the distinctive blue and red strip packagings respectively. The sale figures of 'CROCIN' and 'CROCIN PAIN RELIEF' during the last two years are as under:- <FRM>JUDGEMENT_750_AD(DEL)8_2005Html1.htm</FRM>

(3.) It is also stated in the affidavit that the trade mark of 'CROCIN' is an invented word having no dictionary meaning and thus having the highest degree of distinctiveness. It was first used in India by a company named Duphar-Interfran Ltd in the year 1963 and the same was acquired by the plaintiff No.1 in 1996 and thereafter it has been recorded as the proprietor of the mark CROCIN. It is further stated in the affidavit that in the month of January 2005, the plaintiffs were alerted to the sale of paracetamol tablets under the mark 'NELCIN PLUS' bearing a packaging almost identical to the plaintiffs 'CROCIN PAIN RELIEF', i.e., packaging in red. The plaintiffs made inquiries and it was revealed that these paracetamol tablets bearing mark 'NELCIN PLUS' were being manufactured by the defendant No.1, who is the proprietor of Anros Pharma. The inquiries further indicated that the defendants 2 & 3 were providing technical assistance to the defendant No.1 for manufacturing NELCIN line of products. 1 he specimen of the plaintiffs products have been exhibited as Exhibit P-3 and P-4 and those of the defendants have been exhibited as Exhibit P-5 and P-6. NELCIN PLUS which is shown in Exhibit P-5 is said to infringe the copyright of the plaintiff insofar as 'CROCIN PAIN RELIEF shown in Exhibit P-4 and similarly Exhibit P-5 is said to offend Exhibit P-3. It is further stated that not only the defendants have copied the product packaging of CROCIN 500 and CROCIN PAIN RELIEF, but they have also adopted the NELCIN mark which is distinctively similar to the well-known product of 'CROCIN' and, according to the learned counsel for the plaintiff, such an adoption and use of mark 'NELCIN' would amount to copyright violation and passing off of their goods and infringement of trade mark. It is also submitted by the learned counsel for the plaintiff that a clear comparison of the plaintiffs products with those of the defendants in the said exhibits indicate that in the minds of common customers, the confusion or deception is bound to result inasmuch as the packaging as well as the name used are more or less similar.