WOCKHARDT LIMITED Vs. MAHESH MEDICAL AND GENERAL STORES

JUDGEMENT

(1.) THE plaintiff has taken out this Notice of Motion in a suit, inter alia, for an order and injunction restraining the defendants by an interim order and injunction from in any manner using in relation to medicinal and pharmaceutical preparations the trade mark AZIWIN or any mark deceptively similar to the plaintiffs trade mark AZIWOK registered under No. 650354 in Class 05, so as to infringe the plaintiffs registered trade mark.

(2.) IN the course of the interim order, I heard Mr. Virendra Tulzapurkar, learned Counsel for the plaintiff and Mr. Iqbal Chagla, learned Counsel for the defendant No. 2 at length and have also perused the entire record. The plaintiff is a Limited Company incorporated under the Indian Companies Act, 1956 in the year 1999 under the name of Wockhardt Pharmaceuticals Ltd. which name was changed to Wockhardt Limited and is engaged in the business of manufacturing and marketing medicinal, pharmaceutical and veterinary products for nearly four decades, through its predecessors. Defendant No. 1 is a retailer, having its shop in Mumbai and marketing and selling medicinal and pharmaceutical preparations bearing the impugned trade mark and manufactured by the defendant No. 2. Defendant No. 2 is doing business as manufacturer and merchant of medicinal and pharmaceutical preparations.

(3.) IT is the case of the plaintiff that it is the owner of several trade marks. One such pharmaceutical preparation comprising of chemical compound azithromycin dihydrate which is used for treating respiratory and skin infections is manufactured and market by the plaintiff under the trade mark AZIWOK. The said pharmaceutical preparation is available in the markets in both tablet and in liquid syrup. The plaintiff further stated that it has honestly conceived and adopted the trade mark AZIWOK, wherein the prefix part AZI is taken from the compound Azithromycin and the suffix WOK from their corporate/business name WOCKHARDT. The plaintiff has been using the trade mark AZIWOK upon and in relation to its aforementioned products since atleast June 1995 and is a registered proprietor of the trade mark AZIWOK under the provisions of the Trade and Merchandise Marks Act, 1958 vide Registration No. 650354 as of 30th December, 1994 in Class 05 in relation to medicinal, pharmaceutical and veterinary preparations and sanitary substances. The registration of the said trade mark has been renewed and the same is valid, subsisting and in force. It is the further case of the plaintiff that around the second week of February 2002 the plaintiff was shocked and surprised to come across counterfeit pharmaceutical preparations being azithromycin tablets of the defendant No. 2 bearing the trade mark AZIWIN which were sold within the City of Mumbai by the defendant No. 1, amongst others. Further enquiries made on the mark AZIWIN revealed that like the plaintiff, the defendant was manufacturing and marketing its medicinal and pharmaceutical preparations in both tablet and in liquid syrup form. It is the case of the plaintiff that the defendant No. 2 has used a deceptively similar mark thereof in relation to the same description of goods. The impugned trade mark is in fact phonetically, structurally and visually similar to the reputed and registered trade mark of the plaintiff and the defendants can have no justification for having adopted and used a confusingly similar mark to that of the plaintiff. It is further submitted that therefore the defendants are guilty of violating the plaintiffs statutory and common law rights in the trade mark AZIWOK. By using a deceptively similar mark to the reputed trade mark AZIWOK of the plaintiff, the defendants are misrepresenting their goods as those of the plaintiff and/or are misrepresenting that their goods have some connection with the goods of the plaintiff causing damage to the plaintiff and to the goodwill and reputation of the plaintiffs business and is also diluting the distinctiveness of the plaintiffs mark AZIWOK. The plaintiff submits that by such misrepresentations the defendants are passing-off or are attempting to pass-off their goods as those of the plaintiff. It is further submitted that such illegal and wrongful action of the defendants amounts to the tort of passing-off and/or unfair competition and is actionable as a civil wrong. In view of these aspects, it is submitted that the plaintiff has suffered irreparable loss, injury and harm to them and, therefore, in order to prevent further harm, injury and loss, pending the hearing and final disposal of the suit, ad interim relief is required to be issued in terms of prayers mentioned in the Notice of Motion. According to the plaintiff, the principle of balance of convenience is in their favour because the counterfeiting of the plaintiffs goods by the defendants is deliberate, dishonest and fraudulent as is event from the facts revealed from the record and hence the Notice of Motion is filed.