WALTER BUSHNELL LIMITED Vs. VIPIN AGGARWAL

JUDGEMENT

(1.) This is a suit for grant of permanent injunction restraining infringement of Trade Mark, passing off, damages, delivery etc.

(2.) It has been averred in the plaint that the plaintiff is engaged in the business of manufacturing and marketing pharmaceutical since 1978 and one of these products is the antibiotic sold under the name of "AMCLOX" and that this trade name is registered in its favour since 21.11.1978. It is further averred that in order to distinguish its AMCLOX capsules, the plaintiff had selected a blue and white colour combination for its had selected a blue and white colour combination for its capsules since 1981. This colour combination has become distinctive of the plaintiff's medical preparations, particularly in relation to composition of Ampicillin and Cloxicillin. The plaintiff was aggrieved that the defendants were marketing pharmaceutical preparations which were also antibiotic under the Trade Name AMCLOX which were also capsules having composition of Ampicillin and Cloxidilin and that the colour combination of these capsules was also blue and white. This phonetically and deceptively similar name and packaging adopted by the defendants has instituted the filing of this suit.

(3.) Almost immediately after receiving notice of the suit a statement was made by Mr. Vipin Aggarwal, defendant No. I that he would not use the empty antibiotic capsules of blue and white colour combination for the purpose of manufacturing and trading any medicine under the trade name of AMCLOX or any other trade name which is deceptively similar with the trade name AMCLOX. He further undertook not to use these capsules for filling any medicine which is a combination of Ampicillin and Cloxicillin.