PFIZER ENTERPRISES Vs. H.R. MANCHANDA

JUDGEMENT

(1.) THIS order proposes to dispose of the objection to maintainability of this suit, on the ground of the court lacking territorial jurisdiction, raised by the defendant. The present suit has been filed to restrain the defendants from infringing the trademark of the plaintiffs' and passing off their goods as the plaintiffs' goods. The plaintiffs have also sought rendition of accounts and delivery up of goods.

(2.) THE first plaintiff is a company organized under the laws of Luxembourg. The second plaintiff with its registered office in Mumbai, is its subsidiary in India. It is averred that the plaintiffs form part of the fastest growing research oriented pharmaceutical companies and have been one of the leading healthcare companies in the world. It is also averred that the plaintiffs set up their India operation in the year 1950 in Bombay.

(3.) IT is further averred that the second defendant, a company carrying on its business activities from Mumbai, also manufactures an antibacterial product having Clindamycin as its active ingredient. The plaintiffs state that in March 2007 they were shocked to discover from their sources as well the defendant's website that the second defendant offers pharmaceutical compositions Clindamycin hydrochloride and Clindamycin phosphate under the mark 'Dalcinex', in both capsule and injection form as the plaintiffs do. The plaintiffs allege that such use of the mark Dalcinex by the defendant amounts to infringement and because the defendants want to dishonestly want to appropriate the goodwill of the plaintiffs, also amounts to passing off. It is averred that the defendant's mark is phonetically and visually similar to that of the plaintiffs', in relation to an identical product and therefore, would cause confusion in the minds of the public. It is further stated that the plaintiffs' mark being an arbitrary and unique collocation of words, is distinctive, and therefore, cannot be adopted by the defendants in such dishonest fashion.