Gujarat High Court
Parth vs Rfcl on 12 January, 2010
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
Gujarat High Court Case Information System
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SCA/133/2010 14/ 14 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 133 of
2010
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PARTH
PARENTERAL PVT LTD & 1 - Petitioner(s)
Versus
RFCL
LTD,A DIVISION OF RANBAXYLABORATOREIS LTD,CONVERTED INT & 2 -
Respondent(s)
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Appearance
:
MR
RC JANI for
Petitioner(s) : 1 - 2.
None for Respondent(s) : 1 -
3.
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CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 12/01/2010
ORAL
ORDER
1.0 This petition has been filed under Articles 226 and 227 of the Constitution of India, with the following prayers, (1) Pending the hearing and final disposal of this suit, this Hon'ble Court be pleased to restrain the defendants, their directors, manufacturers, printers, publishers, retailers, stockiest, servants and agents by ad-interim injunction from manufacturing, marketing, advertising and using the trademark CAPSOLA and/or any mark which may be identical and deceptively similar to the plaintiff's registered trademark CAPSOLA under no.1124385 and 1124386 as referred in the plaint;
(2) Pending the hearing and final disposal of this suit, this Hon'ble Court be pleased to restrain the defe3ndants, their directors, manufacturers, printers, publishers, retailers, stockiest, servants and agents by ad-interim injunction from printing, publishing, advertising, using the artwork of the label of CAPSOLA and/or any such artwork which is imitation, copy and /or substantial reproduction and thereby restrain them from committing infringement of the copyright of the plaintiff artwork of the label CAPSOLA;
(3) Pending the hearing and final disposal of this suit, this Hon'ble Court be pleased to restrain by an order of ad-interim injunction the defendants, their directors, manufacturers, printers, publishers, retailers, stockiest, servants and agents from manufacturing, marketing a container which is imitation of registered design of plaintiff which is registered under no.187303 and 189726 and thereby restrain the defendants from committing an act of infringement of design;
(4) Pending the hearing and final disposal of this suit, this Hon'ble Court be pleased to restrain by an order of ad-interim injunction the defendants, manufacturers, printers, publishers, retailers, stockiest, servants and agents by ad-interim injunction from manufacturing, marketing, advertising and using the trademark CAPSOLA and thereby in any manner passing of their goods as goods of the Plaintiffs;
(c) This Hon'ble Court be pleased to appoint a Court Commissioner to seize and take custody of the goods, packing material, label, dyes, containers, stocks, etc. being the impugned mark manufacturers, printers, publishers, retailers, stockiest, servants and agents by ad-interim injunction from manufacturing, marketing, advertising and using the trademark CAPSOLA and the container as per the registered design of the plaintiff, with the powers of entering into using force and/or breaking open the lock and/or removing any obstruction or otherwise entering into the premises of the defendant, (1) office situated at A-3, Okhla Ind. Area, Phase-I, New Delhi-110 020 and (2) plant and godown situated at F-1/1, Sector 6-B, IIE SIDCUL, Haridwar-249403 (Uttarakhand) and their agents, stockiest, manufacturers factory godown where the impugned product is manufacture ad stores and produce before the Hon'ble Court and order the defendants, their directors, agents, dealers to handover all such goods to the plaintiff for destruction;
(d) During the admission, pendency and final disposal of this petition, this Hon'ble Court be pleased grant the ad-interim relief as prayed in clause-(a) to (c);
(e) That this Hon'ble Court may be pleased to pass such other and further orders as the nature circumstances of the case case may deemed fit, just and proper;
2.0 The brief facts relevant for the decision of the petition are that, the petitioner No.2-Pearl Drugs Private Limited was a proprietary firm, when it started manufacturing and marketing an animal food supplement known as 'Capsola', since 1989. Subsequently, the proprietary firm was converted into a Private Limited Company on 7th April, 2000 and is carrying on the business of manufacturing and marketing pharmaceuticals and veterinary products. Respondent No.1 entered into an agreement with the petitioner No.1 for manufacturing a medicine known as Capsola, in the year 2001. This agreement was continued for the next term and was extended upto 2004. Petitioner No.2 issued a notice dated 20th December, 2002 to respondent No.1 (then known as 'Ranbaxy Laboratories Limited)for misuse and infringement of the Trademark Capsola.
2.1 In view of the above, respondent No.1 forwarded the notice to the petitioner No.1 and requested it to take immediate steps, otherwise the brand name Capsola would have to be changed. Petitioner No.1 then entered into an agreement with petitioner No.2, by a Deed of Assignment with goodwill, on 17.02.2003. Subsequently, petitioner No.2-Company was taken over by petitioner No.1, in the year 2007, therefore, petitioner No.1 came to be governed by the Agreement for Assignment of the Trademark since the year 2002, and was manufacturing medicine, being Capsola and supplying it to respondent No.1. The Respondent No.1 was originally known as Ranbaxy Laboratories Limited, and was subsequently converted into Ranbaxy Fine Chemicals Limited and is now referred to as 'RFCL'.
2.2 According to the information of the petitioners, the Vetnex Animal Health Limited, a division of respondent No.1 was sold to respondent No.2 with the brand name Capsola , which is not belonging to respondent No.1. The petitioners were, therefore, constrained to file Civil Suit No.1 of 2010. The petitioners(Original Plaintiffs) have also filed an application at Exhibit-5 in the said suit for grant of temporary injunction, restraining the defendants, their directors, manufacturers, printers, publishers, retailers, stockists, servants and agents by ad-interim injunction from manufacturing, marketing, advertising and using the Trademark Capsola and / or any other mark which may be identical and deceptively similar to the plaintiffs' registered Trademark Capsola , under No.1124385 and No.1124386. The other prayers made in the plaint were inter alia, to restrain the defendants from using the art work of the label Capsola.
2.3 In the application at Exhibit-5, filed before the trial Court, the petitioners prayed for the grant of ad-interim-injunction, to restrain the defendants.
2.4 The trial Court, by order dated 05.11.2010, came to the prima facie conclusion, after hearing the petitioner, that it would be appropriate to hear the defendants, therefore, it was directed that notice be issued to the defendants (present respondents) for 19th January, 2010. The grievance of the petitioners, as voiced in the present petition is that, the trial Court while issuing notice, ought to have granted an ex parte ad-interim-injunction.
3.0 Mr. Mihir Thakor, learned Senior Advocate with Mr. R.C. Jani, learned Counsel for the petitioners, has submitted as below:
(i) That, by not granting an ex parte ad-interim-injunction, the trial Court is deemed to have refused the prayers of the petitioner.
(ii) That, the petitioners have produced sufficient evidence on record to show user of the Trademark Capsola , since 1989, but, in spite of the documentary evidence being produced and arguments being made in this regard, the trial Court has passed the impugned order, without considering or discussing the same and only notice has been issued, and no ad-interim-injunction has been granted.
(iii) That, as the petitioners are the registered proprietors and users of the Trademark Capsola , which product was manufactured by the petitioners and marketed by respondent No.1. The Court below ought to have granted the prayer made in the application, on the first date of hearing, itself.
(iv) That, the impugned order is a non-speaking one and does not contain any reasons, therefore, in view of the material on record, the prayer made in application at Exhibit-5 may be granted by this Court.
Moreover, the trial Court has not appointed a Court Commissioner, as prayed for in application at Exhibit-6 and has only issued notice. If the prayers made in the said applications are not granted, the petitioners would suffer damage in respect of their customers and great prejudice would be caused to them, therefore, the petition may be allowed.
3.1 In support of the above submissions, the learned Senior Advocate has placed reliance upon the following judgments:
(1) Laxmikant V. Patel Vs. Chetanbhai Shah and Another AIR 2002 SC 275;
(2) Midas Hygiene Industries (P) Ltd. And Another Vs. Sudhir Bhatia And Others (2004)3 SCC 90;
(3) Dhariwal Industries Ltd. and Another Vs. M/s. M.S.S. Food Products AIR 2005 SC 1999;
(4) Duncans Agro Industries Limited Vs. Somabhai Tea Processors Private Limited 1995(1)GLR 380.
4.0 I have heard the learned Senior Advocate for the petitioners, considered the submissions advanced at the bar and perused the judgments cited by him.
4.1 In Midas Hygiene Industries (P) Ltd. And Another Vs. Sudhir Bhatia And Others (Supra), the Supreme Court has held that in case of infringement, either of trademark or copyright, normally an injunction must follow and mere delay in bringing the action is not sufficient to defeat the grant of injunction in such cases. It has been, however, observed that the grant of injunction also becomes necessary, if it prima facie appears that the adoption of mark itself was dishonest.
4.2 In Duncans Agro Industries Limited Vs. Somabhai Tea Processors Private Limited (Supra), relying upon a decision in Gaw Kan Lye Vs. Saw Kyone Saing AIR 1939 Rangoon 343, this Court held as below:
As between two competitors who are each desirous of adopting a mark which is distinctive in character, it is entirely a question of who gets there first.
4.3 In Dhariwal Industries Ltd. and Another Vs. M/s. M.S.S. Food Products (Supra), the Supreme Court refused to interfere with the order granting interim injunction, on the basis of plea of prior user taken by the plaintiff.
4.4 In Dhariwal Industries Ltd. and Another Vs. M/s. M.S.S. Food Products (Supra), it has been held by the Supreme Court that, the Supreme Court would not ordinarily interfere in the matter of grant of interim injunction by the trial Court.
4.5 The principles of law enunciated in the above-mentioned judgments are not disputed and prima facie, may also come to the aid of the petitioners before the trial Court. However, this Court cannot lose sight of the fact that the application at Exhibit-5 has not yet been decided by the trial Court. At this stage, only notice has been issued, calling upon the respondents to appear on 19th January, 2010. A perusal of the impugned order does not reveal that the Court has rejected the plea of the petitioner for grant of interim injunction. In fact, no opinion has been expressed, either way, by the trial Court, therefore, it is still open to the petitioners to advance all the arguments made by them in this Court, before the trial Court, at the time of hearing of the application at Exhibit-5. Even otherwise, the petitioners have not challenged the order passed below application at Exhibit-5, and their only grievance is that an ad-interim-injunction has not been granted. Insofar as the application at Exhibit-6 for appointment of a Court Commissioner is concerned, this Court is not inclined to pass any order, as prayed for below the said application, as the trial Court has already issued notice in the said application and is in the process of deciding it.
4.6 In the opinion of this Court, if the prayers made in the petition are granted, it would amount to exercising the discretion vested in the trial Court, without permitting the Court below to do so. While deciding an application for grant of an interim injunction, the trial Court is entitled to exercise discretion on the basis evidence, and documents on record, which it has not yet done. In view of the above, this Court is not inclined to express any opinion on merits, as that may amount to deciding the application.
5.0 Suffice it to say that the Trial Court shall hear the submissions made by the petitioners and consider the judgments cited by them, on the next date hearing i.e. 19th January, 2010.
In case the respondents seek adjournment, the matter shall be fixed on the next date, after hearing the parties and considering the rival submissions, the trial Court shall pass an order below Exhibit-5 in accordance with law, soon thereafter and not later than 22th January, 2010.
5.1 It is clarified that the filing of the petition would not prejudice the petitioners in any way. The petition is disposed of, in the above terms. Direct service is permitted.
(SMT.
ABHILASHA KUMARI, J.) Umesh/ Top