ORCHID HEALTHCARE, CHENNAI Vs. AGLOWMED LTD., PATNA

JUDGEMENT

(1.) HEARD learned counsel for the appellants and learned counsel for the respondent 1st set, Respondents 2nd set although have entered appearance but no one appears on their behalf in the matter.

(2.) THESE two Miscellaneous Appeals have been filed against the orders dated 2 -12 -2004 and 29 -4 - 2006, passed by the Additional District Judge XI, Patna in Title Suit No. 14 of 2001, by the earlier of which order he has granted ad -interim injunction in favour of the plaintiff -respondent 1st set restraining the defendants -appellants from using the trade mark AVASTIN till the disposal of the case under Order 39, Rule 1 and 2 of the Code of Civil Procedure, and by the subsequent order he has extended the order dated 2 -12 - 2004 till the disposal of the suit. The title suit was filed by the plaintiff - respondent 1st set praying for declaration that the defendants are indulging in the act of passing off their product as of the plaintiff and further for seeking permanent injunction restraining the defendants from using the trade mark AVASTIN for marketing their product or any other mark, which is similar to it in respect of medical and pharmaceutical products and for further consequential reliefs.

(3.) THE case of the plaintiff is that it is engaged in manufacturing and trading of medicine and pharmaceutical preparations and one of its product carries the brand name AVASTIN, for which after ensuring that the said brand name is not being registered by any one else, it filed an application on 20 - 10 -2000 for registration of the trade mark in respect of the said product under Section 18(1) of the Trade and Merchandise Marks Act, 1958.The further case was that the trade mark/brand name was being carried on all its packings and medical and trade literature and are exported to other countries also. By virtue of the extensive and voluminous sales/ sale promotion of the said product AVASTIN, the said trade mark/trade name has acquired a very high reputation among the general public, the physicians, whole sellers/dealers in pharmaceutical products as well as the consumers. The said trade mark AVASTIN has, thus, acquired the status of a property mark. It was further stated that the said drug under the brand name AVASTIN was being prescribed by a large number of well known physicians and medical practitioners throughout the country as also in foreign countries. Subsequently on learning that one M/s. Mano Pharmaceuticals Private Limited, Chennai, defendant No.1,. was manu - factoring and marketing one of its pharmaceutical products using the said trade mark AVASTIN, which was identical and deceptively similar to that of the plaintiff 'strade mark AVASTIN to dupe and cheat the consumers, the plaintiff served a legal notice to the said defendant No. 1 at its Chennai address on 12 -7 -2001, but the same was ignored and by letter dated 13 -8 -2001, defendant No. 1 asked for irrelevant particulars about filing of the application for registration, etc. in respect of its product AVASTIN. It was alleged that the defendant -company was still continuing to market its product in the brand name AVASTIN fraudulently imitating and misusing the plaintiff -company 'strade mark. It was further alleged that Defendant Nos. 3 and 4 (Respondent Nos. 2 and 3 herein) are local dealers in Patna, which were selling the product of the defendant -company by the trade name AVASTIN -10 and similarly many shops in Patna and elsewhere were also selling this product under this trade name, least suspecting that general public would be able to detect the misuse, which fact is evident from the cash memos dated 13 -8 -2001 issued by defendant Nos. 3 and 4. The plaintiff -company had, in order to verify the fact that the company 'strade mark was being misused, sent its employee to the above shops to purchase the product in question and accordingly the two cash memos were obtained. Reference was also made to a complaint before the Drug Inspector, who had seized some of the illegally branded Avastin on 17 -8 -2001 at Patna. It was stated that the said action of the defendants has caused wrongful gain to them and huge loss to the plaintiff and accordingly, the prayer was made permanently to restrain the defendants, etc. as stated above.