ALLERGAN INC Vs. ELDER PHARMACEUTICALS LTD

JUDGEMENT

(1.) The suit is for, inter alia, a decree of permanent injunction restraining the defendant from using the trademark BOTOX for any pharmaceutical preparation whatsoever and from launching any drug or medicine under the mark BOTOX thereby constituting infringement of the plaintiff's registered trademark.

(2.) The defendant was directed to be proceeded with ex parte by virtue of the order dated 18.08.2003. Thereafter, the plaintiff led its ex parte evidence in the form of filing the evidence affidavit of one Mr Martin A. Voet who is the Assistant Secretary of the plaintiff company. The power of attorney in his favour executed by the plaintiff company is exhibited as PW-1/1. The other documents which were filed alongwith the affidavit were not exhibited because they were photostat copies, however, they were marked as documents 1-11 and subsequently the plaintiff has filed the certified copy of the registration certificate issued in the plaintiff's favour under the Trade Marks Act, 1999 on 09.08.1991. In fact, the only document of relevance is this document. I have examined the certified copy of the registration certificate which clearly indicates that the registration under the Trade Marks Act, 1999 in respect of the mark BOTOX was granted to the plaintiff on 09.08.1991. In view of the aforesaid, the plaintiff has been able to prove that the mark BOTOX stands registered in the name of the plaintiff since 1991. The plaintiff had filed the present suit at the stage when the defendant had also applied for registration of the said mark in its name. In order to preempt the defendant from using the same mark, this suit had been filed. Opposition proceedings were also initiated by the plaintiffs before the Trademarks Registration Office. The defendant has not come forward to defend the suit nor has the defendant actually commenced user of the mark BOTOX.

(3.) In these circumstances, the plaintiff is clearly entitled to the injunction prayed for and, therefore, the suit is decreed in terms of prayers 'a' and 'b' alongwith costs. The learned counsel for the plaintiff does not press prayers 'c' and 'd'. The decree sheet be prepared accordingly. The suit and all pending applications stand disposed of.