IPCA LABORATORIES LIMITED Vs. SAVITA PHARMACEUTICALS PRIVATE LIMITED

JUDGEMENT

(1.) THE plaintiff filed this suit to restrain the defendant from infringing its copyright in respect of its cartons, passing off its goods as the goods of the plaintiff and for damages. The plaintiff has also sought to restrain the defendant from using, in relation to any medicinal preparation, the label and/or cartons so as to pass off its goods as the goods of the plaintiff. The Notice of Motion seeks interim reliefs in terms of the aforesaid reliefs.

(2.) THE plaintiffs case is that the defendant manufactured, sold and distributed pharmaceutical products under the trade mark "appetone" with a label and in packing and cartons with art work identical to that of the plaintiff. Exhibits "a-1", "a-2" and "a-3" to the plaint are copies of the plaintiffs label and packing. On the said label is the plaintiffs trade mark "appetone". The trade mark and the packing used by the defendant are at Exhibits "c-1", "c-2" and "c-3" of the plaint. It is not necessary to describe the same as the trade mark and the packing used by the plaintiff and the defendant are identical. A finding as to whether one is deceptively similar to the other is therefore not necessary. The question before me is whether the plaintiff is entitled to the injunctions prayed for.

(3.) THE facts are disputed in almost every other material aspect by the parties. Mr. Birendra Saraf, the learned Counsel appearing on behalf of the plaintiff however submitted that even assuming that the plaintiff was not the proprietor of the mark and the artistic work and had pirated the same from the third party it was nevertheless entitled to interlocutory reliefs against the defendant as it was a prior user thereof in India.