FRANCO INDIAN PHARMACEUTICALS LIMITED Vs. MEDIPHARMA

JUDGEMENT

(1.) This is a suit, inter alia, for permanent injunction restraining infringement of Trade Mark, Copyright, Passing Off, and Rendition of Accounts/Damages, Delivery Up.

(2.) The defendant had been directed to be proceeded with ex parte by virtue of an order dated 25.2.2004 Thereafter, the plaintiff led its ex parte evidence in the form of an affidavit of one Mr C. Napoleon, who is the Company Secretary of the plaintiff company. Along with the evidence affidavit of Mr C. Napoleon, the power of attorney executed in his favour, being Ext.P-1 has been filed. In the affidavit it is stated that one Mr Rex Coutinho was the company secretary of the plaintiff company and he had the authority to sign and verify the same at that point of time. It is also stated in the affidavit that the plaintiff is a company incorporated under the Companies Act, 1956 having its registered office at 20, Dr. E. Moses Road, Mumbai-400001.

(3.) It is stated in evidence in support of the pleadings that the plaintiff is engaged in the business of manufacturing and marketing pharmaceutical and medicinal preparations for over 40 years and that it is one of the leading manufacturers of medicinal preparations in the trade. One of the products manufactured by the plaintiff is tonic syrup marketed under the trade mark DEXORANGE. The said tonic syrup comprises of a combination of iron, folic acid and Vitamin B12. It is stated that the said preparation is not a scheduled drug and is, thus, sold across counter without the necessity of requiring a doctor's prescription. It is also contended that the trade mark DEXORANGE is an invented and coined mark by the plaintiff which has no meaning whatsoever in common parlance, under the English dictionary or any medical pharmacopoeia. Ext. P-2 is a sample packaging of the plaintiff's product DEXORANGE. The plaintiff has also been able to establish that the trade mark DEXORANGE has acquired a substantial goodwill and reputation in the trade and is an identifiable product. The sales figures have also been given for several years and for 1999-2000 to Rs. 46,27,21,000/-. The trade mark has also been registered by the plaintiff under registration No. 269335 dated 11.1.1971. A copy of the certificate is marked as Ext. P-3. Ext. P-4 is a Registration Certificate under the Copyright Act with regard to the artistic work on the packaging of the plaintiff's product. The plaintiff has been able to show and establish that it is the proprietor of the trade mark DEXORANGE and that it has a copyright in the artistic work of the packaging with regard to the said product.