GLAXOSMITHKLINE PHARMACEUTICALS LTD Vs. RATHISON PHARMACEUTICAL COMPANY

JUDGEMENT

(1.) Despite service of summons, the defendant did not enter appearance as a result of which this court had directed that the defendant be proceeded with ex parte by virtue of an order dated 10.02.2006. The plaintiff is a well-known company and it produces various pharmaceutical products, including veterinary products. One of its products is sold under the name NILVERM+. This is the brand name for the product Tetramisole Hydrochloride I.P. This is a medication which is used for animal treatment. The defendant is also in the business of producing and marketing veterinary products. One of the products that it markets is also ?Tetramisole Hydrochloride?. Of course, it markets this product under the brand name ?TETRASWIZ?. The case of the plaintiff is that the products of both the plaintiff as well as the defendant are sold in cylinderical tins which have a wrap-around label on them. The label on the tin that is employed by the defendant as disclosed by Exhibit-P-2 and that as employed by the plaintiff as disclosed by Exhibit-P-1 clearly demonstrate that the defendant has copied the label employed by the plaintiff. Various features that are strikingly similar are that the label has a white background in both the cases and in both the cases, there are two horizontal bands on the top of the packaging which are both in green. Apart from that, the use of the animal drawings are virtually identical. The other details of the similarity are given in paragraph 10 of the plaint.

(2.) Since this was an ex parte proceeding insofar as the defendant was concerned, the plaintiff was required to lead its ex parte evidence which it has done by filing of an affidavit of one Mr Gururaja R. Rao dated 18.02.2006, the plaintiff has filed two documents which have been marked Exhibits-P-1 and P-2 which have been referred to above. The statements made by the plaintiff in the affidavit by way of evidence as well as the averments contained in the plaint go unrebutted. A comparison of the Exhibits-P-1 and P-2 clearly shows that the label employed by the defendant is strikingly and / or deceptively similar to that employed by the plaintiff. As such, the plaintiff has been able to establish that it is entitled to the relief of injunction restraining the defendant from utilising the colour scheme, getup and layout of the packaging which they are using as indicated in Exhibit-P-2. They may, however, use any other packaging which is not similar or deceptively similar to the packaging as indicated in Exhibit-P-1.

(3.) Insofar as the other reliefs are concerned, the learned counsel for the plaintiff states that he gives them up, apart from the relief of costs. Accordingly, the suit is decreed in terms of paragraph 25 (a) of the plaint alongwith costs in favour of the plaintiff. The decree sheet be prepared accordingly.