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Boehringer Ingelheim International ... vs Mr X Trading As Messrs Amar Medical Store ... on 27 September, 2022

Author: Jyoti Singh

Bench: Jyoti Singh

                          $~34
                          *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +     CS(COMM)        477/2022     &   I.A.   10934/2022,    15734-37/2022,
                                15739/2022

                                BOEHRINGER INGELHEIM
                                INTERNATIONAL GMBH                    ..... Plaintiff
                                             Through: Ms. Nancy Roy, Advocate.

                                                    versus

                                MR X TRADING AS MESSRS AMAR
                                MEDICAL STORE & ORS.                   ..... Defendants
                                             Through: Mr. Avinash K. Sharma, Advocate for
                                             D-2.

                                CORAM:
                                HON'BLE MS. JUSTICE JYOTI SINGH
                                                    ORDER

% 27.09.2022 I.A. 15734/2022 (under Order 1 Rule 10 CPC, by Plaintiff)

1. This is an application preferred on behalf of the Plaintiff for impleading Bansal Medical Agency, stated to be also operating under the trading name Bansal Medical Agencies/Bansal Enterprises located at Shop No. 3, Gogiya Market, Fountain, Agra, Uttar Pradesh-282 003.

2. It is averred in the application that vide order dated 18.07.2022, ex parte ad interim injunction was passed in favour of the Plaintiff and Local Commissioners were also appointed to take into custody counterfeit products as mentioned in the plaint. During the search and seizure operations carried out at four addresses of Defendants No. 1 and 2, considerable quantity of potentially counterfeit products bearing Plaintiff's CS(COMM) 477/2022 Page 1 of 6 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:15.10.2022 12:22:36 trademark etc. were found and on perusal of the ledgers and stock register records, it was learnt by the Plaintiff that an entity 'Bansal Medical Agency' is one of the primary distributors of Defendant No. 2, who was one of the primary distributors of Defendant No. 1. Upon further investigation and on test purchases being made, JARDIANCE MET 12.5mg/500mg was identified as counterfeit. It is stated that thousands of boxes of the said product are being sold in the market and Plaintiff has a strong apprehension that proposed Defendant No. 4 has colluded with other Defendants in selling counterfeit products. In these circumstances, it is prayed that Defendant No. 4 be impleaded as a party to the present suit.

3. Issue notices to Defendants No. 1 to 3 and to the proposed Defendant No. 4 at the address mentioned aforesaid, through all permissible modes, returnable on 11.10.2022, the date already fixed.

I.A. 15739/2022 (under Order 6 Rule 17 CPC, by Plaintiff)

4. This is an application preferred on behalf of the Plaintiff to carry out amendments to the plaint in view of impleadment of proposed Defendant No. 4, who according to the Plaintiff is one of the prime distributors of Defendant No. 2 and is colluding with the Defendants to sell counterfeit products bearing the Plaintiff's trademark etc.

5. Issue notices to Defendants No. 1 to 3 and to the proposed Defendant No. 4 at the address mentioned aforesaid, through all permissible modes, returnable on 11.10.2022, the date already fixed.

I.A. 15736/2022 (seeking exemption from advance service on Defendants, by Plaintiff)

6. For the reasons stated in the application, the same is allowed and disposed of.

I.A. 15735/2022 (under Order 39 Rules 1 and 2 CPC, by Plaintiff)

7. This is an application preferred on behalf of the Plaintiff seeking ex parte ad interim injunction against the proposed Defendant No. 4.

8. Issue notices to Defendants No. 1 to 3 and to the proposed Defendant No. 4 at the address mentioned aforesaid, through all permissible modes, returnable on 11.10.2022, the date already fixed.

I.A. 15737/2022 (for appointment of Local Commissioner, by Plaintiff)

9. This is an application preferred on behalf of the Plaintiff under Order 26 Rules 9, 10, 16(b) & (c) CPC, for appointment of Local Commissioner.

10. It is averred in the application that vide order dated 18.07.2022, this Court had passed ex parte ad interim injunction against Defendants No. 1 to 3 and also appointed Local Commissioners to take into custody counterfeit products manufactured, sold, packaged by the said Defendants bearing the Plaintiff's trademarks and/or trade dress identical and/or deceptively similar to Plaintiff's products, i.e., medicinal products. During the execution of the Local Commissioner, the material seized reflected that proposed Defendant No. 4, i.e., Bansal Medical Agency working out of the premises at Agra was the prime distributor of Defendant No. 2 and the Defendants are colluding to sell the counterfeit products. The ledgers and stock registers seized by the Local Commissioners indicate the name of proposed Defendant No. 4 and, therefore, to secure the rights and interest of the Plaintiff in the present proceedings, it is essential that the impugned counterfeit products and infringing material stocked at proposed Defendant No. 4's premises be inventorized and seized on superdari. It is also imperative that the physical documents and/or electronic devices such as laptops, computers etc. be also seized.

11. Having heard learned counsel for the Plaintiff and also considering the fact that the counterfeit products are medicines, whose illegal sale in the market is detrimental to public interest, the application deserves to be allowed.

12. Accordingly, Mr. Anjum Javed, Advocate (Mobile No.9999596970), is appointed as Local Commissioner who shall visit the premises at the following address:-

Bansal Medical Agencies/Bansal Enterprises located at Shop No. 3, Gogiya Market, Fountain, Agra, Uttar Pradesh-282 003.

13. Local Commissioner shall visit the aforesaid premises, search and take into custody the counterfeit products manufactured, stored, labeled, packaged, sold and/or offered for sale and/or other material bearing the Plaintiff's trademarks JARDIANCE, JARDIANCE MET, TRAJENTA DUO, GLYXAMBI and/or trade dress which are identical and/or deceptively and confusingly similar to those of the Plaintiff.

14. Local Commissioner shall also take into custody finished/unfinished, packaged/unpackaged counterfeit and/or infringing products, moulds, labels, stickers, packages, boxes, cartons, stationery, posters, brochures, business cards, business envelopes, letterheads, cartons, publicity material, pamphlets, hoardings, signboards, nameboards, on-pack advertising, Point of Sale material, packaging and promotional material and/or any other incriminating material bearing the Plaintiff's trademarks JARDIANCE, JARDIANCE MET, TRAJENTA DUO, GLYXAMBI and/or trade dress which are identical and/or deceptively and confusingly similar to those of the Plaintiff.

15. Local Commissioner shall take into custody all devices such as computers, laptops, tablets, mobile phones, hard disks, USB drives, disks, dongles or any other electronic devices found at the premises and/or in possession of the proposed Defendant No. 4 or its employees, so as to preserve/copy/mirror image the information contained therein.

16. Local Commissioner may be accompanied by a team of IT Experts, nominated by the Plaintiff, who under the supervision of the Local Commissioner may inspect, open, access, read, save, take print out of/from, make copies of and/or take in possession, all the data/information, stored in the computers or other storage or electronic devices including physical files, folders, etc. of the proposed Defendant No. 4, its employees, representatives, affiliates and assigns, and/or any other person who may be found to be storing information of the said Defendant. Proposed Defendant No. 4 shall provide unhindered access, passwords, user details, etc. and assist and co- operate with the Local Commissioner during the execution of the commission. The devices, etc. so taken into custody by the Local Commissioner shall be handed over to the Defendant/authorized representatives on superdari upon their furnishing an undertaking that they shall produce the goods, so seized, before the Court, as and when further directions are issued in this regard.

17. Local Commissioner along with the Representative(s) of the Plaintiff and/or its counsel(s) shall be permitted to enter the premises of the Proposed Defendant No. 4, as aforementioned.

18. Local Commissioner shall make copies and sign books of accounts including ledgers, cash books, bill books, etc. discovered from the premises of Proposed Defendant No. 4.

19. Local Commissioner shall be permitted to take photographs/videos of the execution of the Commission. He shall also be entitled to seek police assistance or protection of the Local Police Station, if so required, for the purpose of execution of the order of this Court. The SHO of the concerned Police Station is directed to provide necessary assistance to the Local Commissioner, if sought for.

20. In case the premises as aforementioned are found locked, the Local Commissioner is at liberty to break open the locks.

21. Plaintiff shall serve a copy of this order upon proposed Defendant No. 4 along with paper book of the suit at the time of execution of the proceedings.

22. Fee of Local Commissioner is fixed at Rs.1,50,000/-, in addition to out-of-pocket and miscellaneous expenses. Fee of the Local Commissioner shall be paid in advance by the Plaintiff.

23. Report of the Local Commissioner shall be filed within two weeks of the execution of the Commission.

24. This order shall not be uploaded on the website of this Court till execution of the Commission by the Local Commissioner.

25. Application is disposed of.

26. Copy of this order be given to learned counsel for the Plaintiff dasti under the signatures of the Court Master.

JYOTI SINGH, J SEPTEMBER 27, 2022/sn CS(COMM) 477/2022 Page 6 of 6 Signature Not Verified Digitally Signed By:KAMAL KUMAR Signing Date:15.10.2022 12:22:36