Indian Kanoon - Search engine for Indian Law

Delhi High Court - Orders

Alkem Laboratories Ltd vs Sgs Pharmaceutical Pvt. Ltd on 3 May, 2021

Author: Jayant Nath

Bench: Jayant Nath

                          $~OS-6
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +    CS (COMM) 213/2021 & I.As. 6047-6051/2021
                               ALKEM LABORATORIES LTD.                   ... Plaintiff

                                                    Through       Mr.Sagar Chandra, Adv.

                                            versus
                                SGS PHARMACEUTICAL PVT. LTD.                        ... Defendant

                                                    Through       Mr.Manoj     Kumar      Garg      and
                                                                  Mr.Siddhartha Patra, Adv.

                                CORAM:
                                HON'BLE MR. JUSTICE JAYANT NATH
                                            ORDER

% 03.05.2021 This hearing is conducted through video conferencing.

CS (COMM) 213/2021 Let the plaint be registered as suit.

Issue summons to the defendant. Learned counsel for the defendant entered appearance and accepts summons.

Written statement be filed within 30 days. Replication, if any, be filed within 30 days.

List before the Joint Registrar for further proceedings on 05.07.2021.

I.A. 6048/2021 (exemption from filing court fees) Court fee be filed within four weeks.

Application stands disposed of.

I.A. 6049/2021(under Order 11 Rule 1 (4) ) Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:06.05.2021 12:11:26 Allowed subject to just exceptions.

I.A. 6050/2021(exemption) Allowed subject to just exceptions.

I.A. 6051/2021(exemption from filing signed pleadings) Plaintiff to file the signed plaint and other documents within three weeks from today.

Application stands disposed of.

1. This is an application under Order 39 Rule 1 and 2 CPC seeking an ex parte injunction to restrain the defendants from manufacturing, selling, offering for sale, advertising etc. pharmaceutical and / or medicinal preparation under the impugned mark 'SAMU' or any other mark which is identical or deceptively similar to the plaintiff's mark 'SUMO' which amounts to infringement of the plaintiff's registered trademark in Class 5.

2. The case of the plaintiff is that it adopted the mark 'SUMO' in 1998 and the said mark was registered on 27.08.1998 in Class 5. Since 1999 plaintiff adopted a unique and highly distinctive Trade Dress for the product 'SUMO'. Since 2018 the plaintiff has also obtained the registration for the SUMO family of marks being SUMOFLAM, SUMOCOLD, SUMOGEL etc.

3. It is the case of the plaintiff that in December, 2020 plaintiff came across the impugned mark of the defendant 'SAMU'. Plaintiff learnt that defendant has adopted an identical trade-dress and had also substantially Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:06.05.2021 12:11:26 reproduced the artistic work of plaintiff's impugned product.

4. A legal notice was sent to the defendant on 04.12.2020. On 04.01.2021 defendant sent a reply denying all the allegations. Hence, the present suit.

5. Learned counsel for the defendant states that they have a registration for the said mark since 2001. He admits that the defendant have been manufacturing since the last one and half year.

6. I may note that in the reply to the legal notice which was sent by the defendant to the plaintiff on 04.01.2021 it is clearly stated that the defendant has been using the impugned mark 'SAMU' for the last one and a half years.

7. I may have a look at the two marks in question which are as follows:

PLAINTIFF'S SUMO CARTON DEFENDANT'S IMPUGNED SAMU CARTON THE PLAINTIFF 'SUMO BLISTER DEFENDANT'S IMPUGNED STRIP' 'SAMU BLISTER STRIP' Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:06.05.2021 12:11:26

8. A perusal of the impugned mark of the defendant 'SAMU' shows that it is deceptively similar to the registered trademark of the plaintiff 'SUMO'. That apart, further the composition of the products is identical namely the plaintiff SUMO is Nimesulide & paracetamol tablets and Defendant SUMA is also of the same composition.

9. Plaintiff has made out a prima facie case. Till the next date, defendant is restrained from using the mark 'SUMA' or any other mark that is identical or deceptively similar to the trademark of the plaintiff 'SUMO' till further orders.

10. Issue notice. Learned counsel for the defendant accepts notice. Reply be filed within 30 days. Replication, if any, be filed within 30 days.

11. List before court on 19.07.2021.

JAYANT NATH, J.

MAY 3, 2021/st Signature Not Verified Digitally Signed By:RADHA BISHT Signing Date:06.05.2021 12:11:26