SUPRIYA PRABHU Vs. JANUS REMEDIES

JUDGEMENT

(1.) This order will dispose of prayer for ad interim relief prayed by the plaintiff during the pendency of Notice of Motion.

(2.) After having considered the rival pleadings and the documents on record including the oral submissions made by the Counsel for the parties across the bar, the position that emerges is as follows: the COLIVAN-D trade mark in India was registered in the name of Janus Pharma private Limited in respect of product of pharmaceutical items included in Class 5. The said Company was in business of manufacture and dealer in ayurvedic, medicinal and pharmaceutical preparations. It was marketing several products since prior to 1980, amongst others, medicinal preparations in the name of Colivan-D tablets which is dicyclomine HCL, Paracetamol. The defendants 2 to 4 were associated with the said company as Directors. It is also noticed that the husband of the plaintiff was working as managing Director of the said Company continuously till 16th July, 1996 and was looking after marketing, sales, distribution and field work for and on behalf of the said Company. It is also noticed that there was one sister Company of the said Company in the name of Janus Remedies Private Limited. Both these Companies, however, have gone in liquidation. M/s. Janus Pharma Private limited has been ordered to be wound up in terms of the decision of the Company Court dated 15th July, 2004 in Company Petition no. 782 of 1997, whereas, m/s. Janus Remedies private Limited has been ordered to be wound up in terms of the decision of the company Court dated 9th August, 2005 in company Petition No. 781 of 1997. These are some of the admitted facts as can be culled out from the record.

(3.) The plaintiff asserts that the trade mark COLIVON-D was assigned to the plaintiff under a Deed of Assignment dated 27th october, 2005 by one Narsinh Prabhu, proprietor of M/s. Field Marc Services. The plaintiff claims to be the sole proprietress of ayurpriya and is engaged in carrying on business of manufacture and dealer in pharma-ceuticals and medicinal preparations. The plaintiff asserts that her predecessor commenced the business of manufacture and dealer in pharmaceutical and medicinal preparations in the year 1992 and was dealing in manufacture and sale of product colivon-D tablets which is also dicyclomine HCL, Paracetamol. The plaintiff asserts that she has acquired exclusive right of user through her predecessor in respect of the registered trade mark COLIVON. The plaintiff has also relied on the sales figures as well as the annual expenditure for the product, for the period 1996-97 till date, in respect of the trade mark COLIVON. The plaintiff asserts that the plaintiff by extensive sales and vigorous promotions of the product in the trade mark COLIVON and the expenditure incurred thereon has built up a large and valuable reputation and goodwill for the goods bearing the registered trade mark COLIVON, which came to be exclusively associated with the plaintiff by the members of the profession/trade and public. The plaintiff has approached this court alleging infringement of her trade mark COLIVON and also for passing off action against the defendants who are marketing their product as the goods of the plaintiff by using trade mark colfvan which is deceptively similar trade mark with respect to pharmaceutical and medicinal preparations and also passing off their goods as the goods of the plaintiff while using and/or selling in respect of their goods, the label and packing similar to that of the plaintiff. According to the plaintiff in or about november, 2006, the plaintiff learnt that the defendants were committing such mischief of infringement of trade mark and passing off as referred to above by using mark COLIVAN and deceptively similar colour scheme for the packing. On these allegations, present action has been brought by the plaintiff.