BIOFARMA Vs. BAL PHARMA LIMITED

JUDGEMENT

(1.) The plaintiff has sued for permanent injunction restraining the defendant from passing off its medicinal preparation as that of the plaintiff by use of the plaintiff's trade mark "MEX"/trade dress/packaging or any deceptive variations thereof, whether as a trade mark, service mark, trade name, trading style etc. and from infringing the copyright of the plaintiff and for ancillary reliefs.

(2.) The suit came up first before this Court on 23rd December, 2016 and thereafter on 12th January, 2017. Summons of the suit and notice of the application for interim relief were ordered to be issued to the defendant vide order dated 16th January, 2017. No ex-parte relief was granted to the plaintiff. Pleadings have been completed and the suit came up last before this Court on 20th November, 2018 for consideration of the application for interim relief and for framing of issues, if any. The counsels for the parties were heard on 20th November, 2018 on the application for interim relief and on request of the counsel for the plaintiff in rejoinder to adjourn the hearing to enable him to cite case law, the hearing was adjourned to today. The counsels have been further heard today. At the close of the hearing, considering the extensive hearing held and the nature of the dispute and which qualifies as a commercial dispute, it appeared that no evidence/trial is required and on the basis of the arguments heard, the suit itself, insofar as for the relief of permanent injunction, can be disposed of, with the need to enquire into the relief, if any required to be granted for damages, accounts etc., being considered, after the relief of injunction is adjudicated. It was so indicated to the counsels. Attention of the counsels is drawn to Staar Surgical Company Vs. Polymer Technologies International,2016 SCCOnLine(Del) 4813, The Financial Times Ltd. Vs. The Times Publishing House Ltd., 2016 234 DLT 305 and Jaideep Mohan Vs. Hub International Industries, 2018 249 DLT 572 where it has been held that in most of such suits, trial/recording of evidence serves no purpose, with self-serving witnesses being examined by the respective parties and ultimately it falling upon the Court to compare the two marks. The counsels fairly agreed.

(3.) The undisputed position is: