ALKEM LABORATORIES LTD Vs. MICRO LABS LIMITED

JUDGEMENT

(1.) Petition filed under Section 151 of Civil Procedure Code to stay the operation of the judgment and decree in O.S. No. 1 of 1999 dated 19.10.2001 on the file of the III Additional District Judge of Krishnagiri pending disposal of this appeal.

(2.) The case in brief is as follows :- The respondent/plaintiff filed a suit for permanent injunction restraining the petitioner/appellant from using the trade mark BECEF or any other mark as may be identical with or deceptively similar to the plaintiffs' trade mark BICEF either by manufacturing, selling or in any manner advertising the same. They also sought for a direction to surrender the labels, literatures, packaging materials and dies, etc. They moved an application for interim injunction on 12.03.1999 and it was dismissed on 22.11.1999. They have not filed any appeal against the order of dismissal. However, ultimately the trial court decreed the suit in favour of the respondent/plaintiff. The petitioner/appellant has been manufacturing and marketing their drug with due licence in the form of injection in vial from 1997 till 19.10.2001 continuously and substantially all over India without any interruption. The respondent are manufacturing and marketing only capsules not vial for two different treatment. It can be bought only by doctor prescription. The petitioners have spent enormous sums of money to promote their product and they have acquired enormous goodwill and reputation by using the trade mark BECEF. Unless interim stay is granted, the petitioner will be greatly prejudiced. The suit is admittedly for passing off; but the trial Court has not even framed an issue with reference to passing off. The petitioner have got prima facie case and the balance of convenience is in their favour and hence, the petition.

(3.) The respondent/plaintiff filed a detailed counter. The respondent company has been carrying on business in the manufacture of medicinal products since 1976. It is a reputed company with annual turn over of Rs. 80 crores. In the course of the business, they have invented, conceived and adopted several trade marks for medicinal preparation and one among them is celebrated trade mark BICEF tablet and suspension form. It is an antibiotic drug used by patients for treating infections. They have been extensively manufacturing and selling this product since 1989. They come across the trade mark BECEF used by the petitioner/appellant as antibiotic medicine as per the claim in the literature, which made for trading Bacterial mengities on serious condition of patient affecting brain. The appellant had commenced recently manufacturing and starting selling an identical trade mark which is structurally and phonetically identical and similar to that of the respondent's trade mark. Notice was also sent to the petitioner's company. The respondent's company filed O.S.1 of 1999 on the file of District Court, Krishnagiri seeking the relief of permanent injunction and after contest, the suit was decreed.