WIN MEDICARE LIMITED Vs. DUA PHARMACEUTICALS PVT LTD

JUDGEMENT

(1.) This Order will dispose of plaintiff's application ( IA 2444/96) filed under Order 39 Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 ( hereinafter referred to as 'the CPC') with the prayer that an interim injunction be granted restraining the defendants, its partners, or proprietors, as the case may be, their officers, agents and servants from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in a pharmaceuticals/medicinal preparations under the mark DICAMOL or any other mark as may be identical with or deceptively similar to the plaintiff's trade mark DICLOMOL or from doing any other thing as may be likely to lead to passing off the goods and/or business of the defendants as that of the plaintiff's.

(2.) The facts relevant for the disposal of the above mentioned application, briefly stated are that the plaintiff company filed a suit for permanent injunction, restraining passing off, rendition of accounts of profits, delivery up etc. against the defendants, named above, averring that the plaintiff is a Company incorporated under the provisions of the Company's Act, 1956, having its registered office at 1400 Hemkunt Tower, 98, Nehru Place, New Delhi and Shri Dev Kumar Lalwani, Company Secretary and the constituted attorney of the plaintiff company is fully authorised to sign and verify the plaint and to institute the present proceedings on behalf of the plaintiff company. It is stated that the plaintiff company, which was established in the year 1981, has carved a niche for itself in the field of manufacture, development and marketing of high quality pharmaceutical preparations and that the plaintiff company has gained tremendous reputation in the medical trade/medical profession amongst the consumers through large scale advertisement, extensive sales ,innovative promotional schemes including distribution of literature among the medical circles. It is further stated that one of the well known products of the plaintiff company is anti- inflammatory and analgesic medicines sold in the form of Diclofenac Sodium and Paracetamol tablets under the trade mark DICLOMOL which is used for treatment of various deceases like rheumatoid arthritis, osteoarthritis, ankylosing spondylitis, cervical spondylosis, intervertebral disc syndrome and sciatica, non- articular rheumatic conditions such as fibrositis, myositis, bursitis, lower back pain, soft tissue injuries such as sprains, strains and sports injuries, painful inflammatory conditions in gynecology, post-operative and post traumatic inflammation and swelling, pain and inflammation following dental surgery and acute attacks of gout. It is stated that the said analgesic medicine under the trade mark DICLOMOL belonging to the plaintiff is also available in the form of injection and gel and is widely used to combat pain and inflammation.

(3.) It is averred that the plaintiff company adopted the trade mark DICLOMOL on 1st September, 1988 and has been in continuous use of the above said trade mark DICLOMOL since then. As per the case of the plaintiff, the plaintiff after 1st September, 1988, has taken various preparatory steps to have the labels, artwork, blocks, dies, stationery and sales, promotional material in relation to the trade mark DICLOMOL,prepared. The plaintiff, it is averred, also obtained approval from the concerned Drug authorities for the purposes of drug licenses on or about 7th January, 1989 and thereafter launched its product under the trade mark DICLOMOL in the Indian market on 25th July, 1989. It is alleged that as a result of wide publicity, involving huge expenditure the plaintiffs above said product under the trade mark DICLOMOL has gained tremendous reputation in the business market and also in the public so much so that the said product under the trade mark DICLOMOL is identified exclusively with the plaintiff. It is stated that the plaintiff's trade mark DICLOMOL appears in a bold typeface on a coloured strip having a half arrow head at its one end. The above said configuration constitutes and original artistic work within the meaning of Section 2(c) of the Copyright Act, 1957. It is stated that by virtue of prior adoption, long, continuous, extensive user as aforesaid as well as owing to the large scale publicity, the trade mark DICLOMOL is identified exclusively with the plaintiff and therefore the plaintiff has the exclusive right to use the said mark and the use of the said mark or any other mark deceptively similar by any one else without the consent of the plaintiff would amount to violation of the plaintiff's legal rights.