LARK LABORATRIES LTD Vs. NABROS PHARMA LTD

JUDGEMENT

(1.) PRESENT Appeal from Order under Order XLIII Rule l (r) of the code of Civil Procedure is arising out of the impugned order dated 02. 03. 2007 passed by the learned Judge of the City Civil Court, ahmedabad below Exh. 6 and 7 in Civil Suit No. 1735 of 2006 by which the learned Chamber Judge has allowed the said Notice of Motion granting injunction in favour of the respondent herein - original plaintiff (hereinafter referred to as 'the plaintiff) and against the appellant herein - original defendant (hereinafter referred to as 'the defendant')restraining the defendants, its proprietor, partners and directors, as the case may be, their servants, agents, dealers, stockiest and distributors from manufacturing, marketing, advertising, selling and exporting its tablets used in plain, inflammation and fever under the impugned trademark BOLAREN along with its copyrights subsist in its artwork of the label packages etc. and any other trade-mark along with its copyrights which may be identical and/or deceptively similar as that of the plaintiffs registered trade-mark DOLAREN along with its copyrights subsist in its artwork of the label, packages etc. and they are also further restrained from committing an act of passing off goods, from selling and exporting tablets used in pain, inflammation and fever as the goods of the plaintiff under the alleged trade-mark BOLAREN along with its copyrights subsist in its artwork of the label, packages etc. and they are also restrained from reproducing the copyrights consisting in the artwork in its trademark BOLAREN having identical style, get-up, layout and design as that of the plaintiff and they are also restrained from committing an act of infringement of the copyrights.

(2.) RESPONDENT herein - original plaintiff had instituted Civil Suit no. 1735 of 2006 against the appellant - original defendant in the City civil Court, Ahmedabad for infringement of their trade-mark 'dolaren' and for infringement of copyrights while passing of aforesaid trade-mark. It is the case on behalf of the plaintiff that the plaintiff ' s company is inter-alia engaged in the business of manufacturing, marketing and selling and exporting medicinal and pharmaceutical preparations and having its office at Navrangpura, Ahmedabad. The suit produce of the plaintiff is in the form of tablet under the trade-mark 'dolaren' with the artistic work in its copyright. Said trade-mark 'dolaren' and the copyright consisting the artistic work in its label, packages etc. is adopted and started using by the plaintiff's company who is using the trademark with the copyright consist in the artwork of label, packages etc. since 1998 continuously, extensively, exclusively and openly. That the defendant's company inter-alia seems to be engaged in the business of manufacturing, marketing, selling and exporting medicinal and pharmaceutical preparations and the defendant is also manufacturing, selling and exporting an identical product under deceptive similar trademark 'bolaren' and copyright consisting the artistic work in its label, packages etc. which is an identical or rather ditto-to-ditto same as that of the plaintiff' s copyright subsist in its artwork consist in its packaging and also the trade-mark 'bolaren' is deceptively similar to that of the plaintiff' s trade-mark 'dolaren'. It is also the case of the plaintiff that the plaintiff is very well-known and a prime manufacturer and merchant of the medicinal and pharmaceutical preparations. The product of the plaintiff has become very famous and have acquired the tremendous reputation amongst the public for its excellent quality and in consequences thereof a very valuable goodwill accumulated therein. It the case on behalf of the plaintiff that to distinguish its product from the products of the other manufacturers, the plaintiff have adopted and using the trade-mark 'dolaren' and also the copyright consisting in its artwork i. e. particular style, get-up, layout, design of that of the hand of a man covered with glove knocks out and to show the pain disappears with the design of zig zag and at the bottom of the packages of the plaintiff, the trade-mark 'dolaren' has been written and under it there has been a note written as 'knocks OUT PAIN, INFLAMMATION AND fever', the manner of writing the trade-mark 'dolaren' 'on each packages both in English and in Russian language on the packages of the plaintiff is being continuously used by the plaintiff since 1998 in respect of the medicinal and pharmaceutical preparations uninterruptedly continuously, extensively and openly in many countries of the world and the plaintiff ' s mark 'dolaren' in Russian language with artwork of the packages is also wholly registered as a trade-mark in class 05 bearing no. 810263 user dated claimed since 15. 07. 1998 in India and the plaintiff has also got registered the said trade-mark in Belarus, Syria and patent and trade-mark of the medicine under 'dolaren' in Ukraine, and also obtained produce registration certificate of the Ministry of Health of Russia and Georgia also and therefore, the plaintiff have become sole exclusive registered proprietor of the trade-mark 'dolaren' and the copyrights subsists in the artwork on its label and on the packages. It the case on behalf of the plaintiff that the defendant have not only pirated the deceptively similar trade-mark 'bolaren' but very trick fully has just replaced a single word 'b' in place of 'd' so that he can easily and tactfully get an advantages of well built up reputation and goodwill of the plaintiff and moreover the defendant have also adopted and is using exactly identical copyright consist in the artistic work of the packages of its product i. e. the defendant have copied the designs and ideas of the plaintiff ' s product materials of that of the hand of a man covered with a glove knocks out and to show the pain disappears with the design of zig zag and at the bottom of the packages of the defendant, the trade-mark 'bolaren' has been written and under it there has been a note written as 'knocks OUT PAIN, INFLAMMATION AND FEVER' the manner of writing the trade-mark 'bolaren' on each packages both in English and in Russian language on the packages of the defendant are all the way same and identical to that of the plaintiffs packaging materials. Moreover, the defendant is also using the impugned trade-mark 'bolaren' with copyright in its artistic work with respect to the same class of goods i. e. tablets for pain, inflammation and fever and its tablets consists same quantity of the contents used by the plaintiff. Both the plaintiff and the defendant are exporting their product. Therefore, it is alleged that the plaintiff is the sole proprietor and enjoying the exclusive rights to use the said trade-mark 'dolaren' and the copyright subsists in the artwork of its label and on the packages under the provisions of the Trade Marks Act, 1999 and the Copyright Act, 1957. It is further averred in the plaint that recently in the international market the plaintiff came across that the defendant - Lark Laboratories Ltd. have launched the same product viz. Tablet used in pain, inflammation and fever having an identical or deceptively similar rather ditto to ditto imitation of the plaintiff ' s popular trade-mark 'dolaren' along with the copyright in the artwork of its label and on packages viz. Particular style, get-up, layout and design mentioned above which is identical with that of the plaintiff ' s artwork of the packages which has adopted by the defendant in such a smart and tricky manner so as to customer would lead to purchase the defendant's goods under the impression that said products belongs to the plaintiff. It is averred that overall effect of the packages and the trade-mark 'bolaren' along with the copyright in the artwork of its label and on packages of the defendant are identical and deceptively similar rather same as that of the plaintiff ' s popular trade-mark 'dolaren' along with the copyright in the artwork of its label and on packages so as to lead the purchaser to be deceived and confused. It is also further averred in the plaint that the trade-mark 'dolaren' along with the copyright in the artwork of its label and on packages has been imitated by the defendant in such a tricky manner which shows defendant's malafide intention to imitate the well known mark and artwork of the plaintiff on the labels and the packages. It is also further averred that to show both marks in juxtaposition likelihood of confusion and deception is to be revealed. Making above allegations along with other averments with regard to infringement of trade-mark, infringement of copyrights and passing off aforesaid registered trade-mark 'dolaren' the plaintiff had instituted aforesaid suit with following prayers :

(3.) NECESSARY averments with respect to cause of action and territorial jurisdiction are in para 12 which are reproduced as under: