Delhi District Court
M/S Brawn Laboratories Ltd vs M/S Divine Life Care Pvt Ltd on 31 March, 2015
ID No.02401C0533492009
IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT
JUDGE (CENTRAL07) : TIS HAZARI COURT : DELHI
CIVIL SUIT NO.203/2013
M/s Brawn Laboratories Ltd.
Delhi Stock Exchange Building
4/4B, Asaf Ali Road, New Delhi110002
Through its Authorized Representative
Mr. Manoj Raina. .............PLAINTIFF
VERSUS
M/s Divine Life Care Pvt Ltd.
Plot No. 220, Mahagujrat Ind. Estate,
At & Po. Moraiya Tal Sanand,
Ahmedabad 382213, Gujarat
Through its Chairman/Managing Director
New Delhi. ............ DEFENDANT
Date of Institution : 23.11.2009
Date when the case reserved for order : 31.03.2015
Date of Order : 31.03.2015
JUDGMENT
1. Plaintiff has filed the present suit for permanent injunction and for restraining the defendant from infringing the Trademark "EXIT" as well as passing off and rendition of accounts and delivery up.
1/7 Brawn Laboratories vs. Divine Life Care 2. Brief facts of the case of plaintiff are like this. The plaintiff
company is a company registered under the Companies Act and has filed the present suit through its AR namely Manoj Raina, who is authorized to sign, verify and institute the present suit by venture of resolution dated 14.04.2009 passed by the Company. The plaintiff company is an ISO 9001 and WHO G.M.P (Good Manufacturing Practices) certified company engaged in the business of manufacturing, distribution and marketing of medicinal, curative and Pharmaceutical preparations, in the form of tablets, syrups, capsules, powders, injections and other similar substances since 29.01.1991. The plaintiff company has evolved into a fully integrated healthcare group, marking its presence in India and dotting various major markets across the world. Plaintiff company is proud to possess product registration with major health and Government institution in India as well as in a number of countries. Plaintiff company is being headed and represented by a team of skilled industry experts with impressive educational backgrounds and broad experience, and continues to spread its wings in expansion in the domestic as well as in the international markets with a vision beyond the existing horizon to stand amongst the leading Indian health care products distribution companies. Plaintiff company's pharmaceutical products cover all major product segments like antibiotics, cardiovascular, antibacterials, Analgesics, gastrointestinal, antifungals, skin care, antipsychotics, antiasthmatics, antacids, antimalarials and nutritionals etc and its products are exported to 45 countries. Plaintiff company is currently engaged in manufacturing more than 350 products which are used in premier medical institutions across the country. The plaintiff Company has participated in various International and National pharmaceutical exhibitions. The plaintiff company has secured registrations for several Trade Marks including the trade marks 'EXIT' and 2/7 Brawn Laboratories vs. Divine Life Care its products are manufactured and marketed under registered trade mark 'EXIT' since 2000 continuously and uninterruptedly till date. The plaintiff Company's business is one of the fastest growing pharmaceuticals company's business in India as well abroad and its brand 'EXIT' is amongst the fastest growing brands in the medical sector and pharmaceutical industry which is depicted in its sale for the last 9 years and company has spent huge amount on the advertisement of its products under trade mark 'EXIT'.
3. The plaintiff company got registered its trade mark 'EXIT' in the year 2003 through registration no. 1225915. The word 'EXIT' is a unique word in the world of medicines and is thus an invented mark which is serving as an incredibly superior Trade Mark in trade which has created a well known brand name in the market for plaintiff company. The work 'EXIT' by virtue of extensive use and publicity over many years is a distinctive of and is identified world wide with plaintiff company business products and commands much valuable reputation and goodwill in both International as well as in Indian markets. The work 'EXIT' has categorized itself as a well known trade mark within the meaning of section 2 (1) (zg) of the Trade Mark Act, 1999. The plaintiff company has built up an enviable reputation and has earned high admiration from its worldwide customers as well as from doctors from various countries for supplying quality products therefore, trade mark 'EXIT' invariably, perpetually and eternally has been linked to the plaintiff company and none else in relation to the above mentioned pharmaceutical products. The plaintiff company acknowledges and values its rights both statutory and common law rights for the protection of its registered trade mark 'EXIT'. This mark is registered in India since 2003, and which is used by the plaintiff company since 1996. The plaintiff company has spent 3/7 Brawn Laboratories vs. Divine Life Care considerable and enormous amount of time, money and efforts in advertising and promoting its Trade mark 'EXIT' through print media. This trade mark is valid, subsisting and has been renewed from time to time.
4. The defendant company is also engaged in the business of manufacturing and marketing of medicinal and pharmaceutical preparations and with as deliberate malafide intention started manufacturing/using medicine under the trade mark 'EXIT' of plaintiff company which is palpably identical and phonetically similar in relation to be the plaintiff company registered trade mark 'EXIT'. The plaintiff company is prior user of its registered trade mark 'EXIT' and Defendant company's mark 'EXIT' is not registered in terms of the search report dated 04.05.2009. The adoption and use of the mark 'EXIT' by the defendant company, which phonetically sounds deceptively similar to the well known registered trade mark 'EXIT' of plaintiff company is illegal, fraudulent, malafide, unfair, an dishonest and the same is in violation of the statutory and common law rights of the plaintiff company by way of passing off. Such adoption of mark 'EXIT' by defendant company has resulted in confusion and deception in the mind of innocent customers worldwide and which is amounting to infringement of the plaintiff's company both statutory as well as common law rights vested in its registered trade mark 'EXIT'. The act of the defendant company in using its mark 'EXIT' which is phonetically and visually similar to the registered trade mark 'EXIT' of the plaintiff company is a clear infringement of its trade mark under section 29 (1) of the Trade mark Act, 1999. The act of the defendant company in using mark 'EXIT' also tantamount to 'passing off' its products as that of the plaintiff company as well as dilution of the reputation and distinctive features of registered trade mark of the plaintiff company as 4/7 Brawn Laboratories vs. Divine Life Care products of plaintiff company has acquired immense goodwill and reputation in the trade circles. Therefore the use of mark 'EXIT' by defendant company would create confusion amongst customers of the plaintiff company. The trade mark 'EXIT' is the exclusive and coveted property of the plaintiff company and therefore, no other person is entitled to use a mark that is identical with or deceptively similar to the registered trade mark 'EXIT' of the plaintiff company otherwise also, the act of the defendant company would be detrimental to the distinctive character of the plaintiff company registered trade mark 'EXIT'. The defendant company wants to cash on the goodwill and reputation which has been earned by the plaintiff company in due course of its business over long period after investing huge amount of money & intellectual labour with respect to its registered trade mark 'EXIT' for its products.
5. On 21.12.2010 the defendant was proceeded exparte.
6. The plaintiff led exparte evidence. The plaintiff examined Sh. Manoj Raina, Distribution Manager as PW1 and proved his affidavit Ex.PW 1/A. He has also proved copies of Memorandum and Articles of Association Ex.PW 1/1, Board Resolution Ex. PW 1/ 2, copy of incorporation certificate of business Ex.PW 1/ 3, Certificate of commencement of business Ex.PW 1/ 4 and WHO GMP Certificate Ex. PW 1/ 5, copy of trademark registration certificate Ex. PW 1/6, status report dated 25.02.2009 Ex. PW 1/7, copies of brochure Ex.PW 1/8, copies of promotional materials Ex.PW 1/9, copies of search report 04.05.2009 Ex. PW 1/10 and bills of photo studio Ex.PW 1/11.
5/7 Brawn Laboratories vs. Divine Life Care
7. I have heard Ld. Counsel for the plaintiff and have perused the material available on record.
8. As per the evidence led by the plaintiff, the plaintiff firm is dealing in pharmaceuticals articles/goods since 29.01.1991 and the plaintiff firm is producing its products under the trade mark 'EXIT' since 2002 continuously and uninterruptedly till date and the said trade mark has been registered in the name of the plaintiff firm in terms of Ex.PW 1/6 and Ex.PW 1/7. The plaintiff company has spent heavy amount on the advertisement of the trade mark 'EXIT' as detailed in the plaint. The word trade mark "EXIT" is a unique word and invented by the plaintiff. The plaintiff is a prior user of the trade mark and the defendant company's mark 'EXIT' is not registered one and the said mark of the defendant is deceptively and phonetically similar to the trade mark of the plaintiff "EXIT" and any person would be misled to believe that the defendant company's products are sold under the trade mark 'EXIT' which exclusively belong to the plaintiff company. Therefore, the plaintiff's suit is deserves to be decreed and is hereby decreed. A decree of permanent injunction is passed in favour of the plaintiff and against the defendant restraining the defendant company, their family members, Promoters, Officers, Servants, agents, franchisees from using the mark/label/word "Exit" or any other deceptively similar mark in relation to the Medicinal, Curative and Pharmaceutical preparations, in the form of tablets, syrups, capsules, powders, injections and other similar substances or any other product in any manner whatsoever as to result in passing off acts of unfair competition and Dilution. A decree of rendition of Accounts is also granted in favour of the plaintiff company against the defendant company. A decree of deliveryup of all the infringing products bearing the 6/7 Brawn Laboratories vs. Divine Life Care mark/label/word "EXIT" including stickers, pamphlets, brochures, stationery, packaging material, hoardings, sign boards (if any) etc. or any other material bearing the mark "EXIT" be also passed in favour of the plaintiff. No order as to cost. Decree sheet be prepared accordingly.
File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT, On 31st day of March, 2015.
(DR. VIJAY KUMAR DAHIYA)
ADJ(CENTRAL07)/DELHI
31.03.2015
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8/7 Brawn Laboratories vs. Divine Life Care