WINGS PHARMACEUTICALS P LIMITED Vs. SWAN PHARMACEUTICALS

JUDGEMENT

(1.) This civil revision by defendant Nos. 1 and 2 is directed against order dated April 15, 1997 passed by the VIth Additional District Judge, Patna in Title Suit No. 1 of 1997 rejecting the petition for stay of the suit under Section 10 of the Code of Civil Procedure.

(2.) The suit in question, i.e. Title Suit No. 1 of 1997 has been instituted by the plaintiff-opposite party No. 1 seeking permanent injunction against the defendants, their agents, servants, distributors, sellers etc., restraining them from using colourable wrappers and goods with the trade marks DICLOWIN PLUS or NEW DICLOWIN PLUS and passing off the said product in the market. The plaintiff has further sought direction to the defendants to render true and faithful account of the profit earned by them by imitating and passing off the aforesaid trade name with respect to their products. According to the plaintiff, it obtained a licence from the Chief Licensing Authority-cum-State Drugs Controller, Bihar for the manufacture of anti-inflammatory analgesic tablets by the name of DICLOVIN PLUS on 4-8-95. It has adopted a proper get up and design of wrapper and carton in which the products are sold. It has applied for registration of the trade mark before the Registrar of Trade Marks, Calcutta which is pending. According to the plaintiff, it recently came to its knowledge that petitioner-defendant No. 1 has been manufacturing and selling pain killing analgesic tablets by the name NEW DICLOWIN PLUS in wrappers and cartons of identical get up, design and colour combination as that of the plaintiff' DICLOVIN PLUS and selling the same in shops at different places. Hence the suit.

(3.) The petitioner-defendant No. 1 had earlier filed Suit No. 2981 of 1996 on December 5, 1996 in the Delhi High Court under its ordinary original jurisdiction seeking similar reliefs namely, permanent injunction, rendition of accounts etc. against the plaintiff and some pro forma defendants with respect to the products DICLOVIN. According to the petitioner the Company Wings Pharmaceuticals (P) Ltd. is an incorporated Company under the Companies Act. It was established in the year 1988 for manufacturing pharmaceutical products. In August, 1989 it established its own manufacturing unit at Udyognagar, New Delhi. Another Unit was established in the year 1996. Both the Units are engaged in manufacturing and marketing of pharmaceuticals in various formulations like, tablets, capsules, liquid, orals, dry syrups etc. In paragraph-4 of the plaint, the petitioner gave list of several products having the word 'WIN' as the prefix or suffix. The trade name DICLOWIN was coined for the first time in the year 1990 by taking the prefix DIC from Diclofenac Sodium and the suffix WIN from its trade name Wings Pharmaceuticals Pvt. Ltd. The said product is a powerful and trusted anti-inflammatory analgesic. The product has since been in extensive use throughout India, the petitioner has applied for registration of the said trade mark which is pending registration in the Trade Marks Registry. In the year 1994 the petitioner added the suffix PLUS to its product DICLOWIN with respect to a new product which is a more powerful analgesic than DICLOWIN. The products have a typical get up, colour combination etc. on the wrappers and cartons. It has copyright with respect to the said artistic word under the Copyright Act. It recently came to the knowledge of the petitioner that the plaintiff has been manufacturing and selling anti-inflammatory analgesic tablets by the trade name DICLOVIN PLUS with wrappers and cartons of identical get up, colour combination etc. as that of the wrappers and cartons of the petitioner' products. The petitioner obtained samples of DICLOVIN PLUS and got the same tested at the Shriram Institute for Industrial Research. In the opinion of the said Institute "the given sample was not of standard quality in respect of paracetamol content". According to the petitioner, thus the plaintiff by manufacturing and selling the product by the trade name DICLOVIN PLUS in identical wrappers and cartons has not only been infringing upon its right but also playing havoc with the public health. In these circumstances, the petitioner instituted suit seeking permanent injunction etc. under Section 105 of the Trade and Merchandise Marks Act, 1958 and Section 62 of the Copyright Act, 1957.