APEX LABORATORIES LIMITED Vs. INDIA PHARMACEUTICALS

JUDGEMENT

(1.) The suit has been filed by the plaintiff, for granting a permanent injunction restraining the defendants either by themselves, their servant or agents or any one claiming through or under them from committing an infringement of the plaintiff's Copy right in the artistic work 'ZINCOVIT' label by the use of the infringing BICAL label or any other label work or representation the use of which would be an infringement of the plaintiff's artistic work 'ZINCOVIT' Label; granting a permanent injunction restraining the defendant, either by themselves, their servant or agent or any one claiming through or under them from passing off or enabling others to pass off their goods as or for the well known and reputed goods of the plaintiff by using the BICAL Label for Pharmaceutical and/or Medicinal preparations or like goods or any other Label work or representation which is in any manner deceptively or confusingly similar to the plaintiff's well known and reputed 'ZINCOVIT' Label; directing the defendant to render a true account and to pay to the plaintiff a sum equivalent to the profits earned by the defendant through the sale of the said offending goods in the alternative to pay to the plaintiff such sum as this Court may determine by way of damages for the passing off committed by the defendant; directing the defendant to surrender to the plaintiff for destruction all product cartons and labels, literature, promotional material etc., bearing the said offending mark, together with all implements used by the defendant for imprinting the said offending work; directing the defendant to pay to the plaintiff the costs of the suit and for any other such order.

(2.) Besides prior user there are three points on which the defendant resisted the suit and they are as follows:

(3.) On the rival pleadings extracted above, the following issues were framed by this Court: