LILLY ICOS LLC. Vs. AJANTA PHARMA LIMITED

JUDGEMENT

(1.) THIS execution petition has been filed by the decree holder alleging violation by the judgment debtor of the Order and decree of this Court dated 22.5.2004. The decree is a consent decree. The suit being CS(OS) No. 159/2004 which was decreed pertained to disputes between the parties on account of the cause of action pleaded by the decree holder/plaintiff of the judgment debtor/defendant using the trade mark "CIALIS" or any other mark deceptively similar to "CIALIS" such as "INDIAN CIALIS", " GENERIC CIALIS" or "APCALIS". Decree holder/plaintiff inter alia had sought restraint against the use or depiction on the packages of the defendant/judgment debtor, a "SWIRL" of the decree holder/plaintiff which is referred to as a "CIALIS SWIRL". There was also the cause of action and relief as claimed by the decree holder/plaintiff with respect to an almond shaped light yellow colour tablet sold by the decree holder/plaintiff under the trade mark "CIALIS" and same type of the tablet being used by the judgment debtor/defendant.

(2.) WITH respect to the disputes by the consent Order and decree dated 22.5.2004, basically the following three agreements/directions were agreed/enforced: -

(3.) TAKING the last aspect first of the judgment debtor/defendant not permitting anyone else to use CIALIS, INDIAN CIALIS and/or GENERIC CIALIS whether in advertisement or publicity materials etc, the statement of the judgment debtor/defendant as recorded in the Order dated 22.5.2004 would and can only be with respect to persons who are under the control of the judgment debtor/defendant. Such persons under the control of the judgment debtor/defendant would include agents or servants of the judgment debtor/defendant. The effective direction would therefore in terms of the Order dated 22.5.2004 would be that the judgment debtor/defendant must at least write to its agents or servants that they shall not correlate products of the judgment debtor/defendant with "CIALIS, INDIAN CIALIS and/or GENERIC CIALIS", that the mark APCALIS will be used with the suffix 'sX', and, that the judgment debtor/defendant cannot use CIALIS SWIRL of the decree holder/plaintiff.