CADILA HEALTHCARE LTD Vs. SPECIALITY MEDITECH PRIVATE LIMITED

JUDGEMENT

(1.) PRESENT Appeal from Order under Order 43 Rule 1 of the Code of Civil Procedure is preferred by the appellant -original plaintiff challenging the impugned order dated 28.11.2008 passed by the learned Principal District Judge, Ahmedabad (Rural) passed below Exh.5 in Civil Suit No.4 of 2008 by which the learned Judge has dismissed the said application Exh.5 submitted by the appellant -plaintiff for interim injunction restraining the defendants from selling, manufacturing and marketing the product under the trade mark "DOMOCID" and/or any other trade mark which is deceptively similar or imitation of the appellant's registered trade mark "OCID" amounting to infringement and passing off the appellant's mark, either directly or through their directors, employees, agents, stockists, distributors, dealers and retailers throughout the Union of India or any part thereof.

(2.) AT the outset it is required to be noted that the plaintiff has filed the suit for infringement of trade mark and for action of passing off. However, Shri Mihir Thakore, learned Senior Advocate appearing on behalf of the appellant has stated at the bar that the appellant is not claiming any relief for passing off action and the suit as well as the present appeal from order be confined to the relief for infringement of trade mark only. Therefore in the present appeal from order the allegation with respect to the infringement of the trade mark "OCID" only is required to be considered.

(3.) ORIGINAL plaintiff - Cadila Health Care Limited had instituted Civil Suit No.4 of 2008 against the defendants who are having their registered office at Hyderabad and carrying their business at Hyderabad, for infringement of the trade mark "OCID" by alleging inter -alia that the defendants are manufacturing the tablets/product under the trade mark "DOMOCID" in breach of the registered trade mark "OCID". It is the case on behalf of the plaintiff that the plaintiff is a well known pharmaceutical company of India engaged in the business of manufacturing and marketing of various pharmaceutical and health related products such as bulk drugs (raw material basic drugs used in manufacturing medicines like tablet, capsule etc.), formulations (i.e. ready to use dosage forms like tablets, capsules, injections, packed in strips, vials, ampoules etc.), vaccines, cosmetics, food products etc., and is the fourth largest formulation manufacturer in India. That the defendant No.1 is carrying on its business activities under the name and style of Specialty Meditech Private Limited at Hyderabad and defendant No.2 is manufacturing various pharmaceutical products. That Cadila Chemicals Limited, a leading pharmaceutical company (an erstwhile company of "Cadila Group") introduced a preparation of Omeprazole in the year 1991 for treatment of Duodenal and gastric ulcers under the trade mark "OCID". That the said company had invented, coined and were first to adopt the mark "OCID" for the said product to distinguish it from similar products of other manufacturers. The said preparation manufactured and marketed by the said Cadila Group Company enjoyed and commanded very high reputation amongst the medical practitioners, the trade and consuming public in view of its excellent quality and efficacy of the product. That the mark "OCID" was applied for registration under the provisions of Trade and Merchandise Marks Act, 1958 in Class 5 under Application No.542930 as on 3rd January, 1991, and was subsequently registered under the said Act as of 3rd January, 1991, by the Trademark Registry's Order dated 15th September, 1997. That the said mark has been renewed from time to time and is renewed upto 3.1.2015. That the Cadila Chemicals Limited sold the product "OCID" through its excellent sales network all over the country and used to spend large amounts of money for popularizing its product through advertisements, by circulation of trade literatures including brochures, physician's samples etc. That the total sales of product "OCID" has exceeded Rs.46,00,00,000 (Rupees Forty Six Crores) for the year 2006 -2007. That in the year 1995 the Cadila Group of Companies decided to restructure the business of its group companies and accordingly the business of Cadila Chemicals Limited has been transfered to two transferee Companies viz. Cadila Healthcare Limited - the plaintiff in the suit and Cadila Pharmaceuticals Ltd., with all its property, rights and trade marks both registered and unregistered as per order dated 2.5.1997 of this Court passed in Company Petition No.84/1996 connected with Company Application No.200/95. Thus, according to the plaintiff, the registered trade mark "OCID" is assigned to the plaintiff company Cadila Healthcare Limited with effect from 2nd May, 1997.