WIN MEDICARE PRIVATE LIMITED Vs. MARIGOLD PHARMA LTD

JUDGEMENT

(1.) THE plaintiff being the registered proprietor of the trademark BETADINE and ECZO-BETADINE in relation to medicinal and pharmaceutical preparations instituted the present suit for permanent injunction for restraining the defendant No. 1 from manufacturing and the defendant No. 2 from marketing the same product under the deceptively similar name BEECTADINE and for other ancillary reliefs. Vide ex-parte order dated 20th May, 2004, the defendants were restrained from manufacturing and marketing products under the trademark beectadine or any other trademark which may be similar or deceptively similar to the trademark BETADINE of the plaintiff.

(2.) THE defendant No. 2 was served with the summons/notice of the suit/application and on 19th January, 2005 informed that the defendant No. 1 who was engaged in the business of manufacturing the infringing goods had closed shop since January, 2004 and consequently the defendant No. 2 who was selling the goods manufactured by the defendant No. 1 had also stopped marketing the said product. The plaintiff was unable to serve the defendant No. 1 who was ultimately deemed to be served on report of refusal from the Sonipat address and was on 1st May, 2006 proceeded against ex-parte and remains ex-parte. The defendant No. 2 also did not file any written statement and stopped appearing after appearing for a few dates and was vide order dated 15th February, 2007 proceeded against ex-parte and remains ex-parte. It is not the case of the plaintiff that the statement made on behalf of defendant No. 2 on 19th January, 2005 was wrong.

(3.) THE plaintiff has led its ex-parte evidence by filing the affidavit by way of examination in chief of its constituted attorney Mr. Rajiv Bahel. The trademark registrations have been proved as Exhibit-P6 and the copyright registration as Exhibit-P10. The sample, brochure of the plaintiff has been proved as Exhibit-P5 and Exhibit-P7 and the photograph of the impugned product is Exhibit-P11. A perusal thereof shows that the defendant No. 1 had copied not only the trademark and copyright of the plaintiff but also the packaging including cartons, tubes, colour scheme and the entire get up of the product of the plaintiff. The defendant No. 1 obviously wanted to illegally enrich itself to the detriment of the plaintiff.