Delhi High Court - Orders
Glaxo Group Limited And Anr vs K. R. Pharma And Others on 31 October, 2023
Author: Prathiba M. Singh
Bench: Prathiba M. Singh
$~26
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 782/2023, I.A. 21496/2023, 21497/2023, 21498/2023,
21499/2023, 21500/2023 & 21501/2023
GLAXO GROUP LIMITED AND ANR. ..... Plaintiffs
Through: Ms Shwetasree Majumder, Ms Tanya
Varma, Mr. Vardaan Anand & Ms
Parkhi Rai, Advs. (M: 9540132363)
Versus
K. R. PHARMA AND OTHERS ..... Defendants
Through: Mr. Prag Chawla, Ishaan Chawla, &
Jaspreet Adv.
CORAM:
JUSTICE PRATHIBA M. SINGH
ORDER
% 31.10.2023
1. This hearing has been done through hybrid mode.
I.A. 21499/2023 (for exemption)
2. This is an application seeking exemption from filing originals/certified/cleared/typed or translated copies of documents, left side margins, electronic documents, etc. Original documents shall be produced/filed at the time of Admission/Denial, if sought, strictly as per the provisions of the Commercial Courts Act and the DHC (Original Side) Rules, 2018.
3. Exemption is allowed, subject to all just exceptions.
4. Accordingly, application is disposed of.
I.A.21498/2023 (for additional documents)
5. This is an application seeking leave to file additional documents under the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (hereinafter, 'Commercial Courts Act').
CS(COMM) 782/2023 Page 1 of 11This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:27 The Plaintiffs, if they wish to file additional documents at a later stage, shall do so strictly as per the provisions of the Commercial Courts Act and the DHC (Original Side) Rules, 2018.
6. Application is disposed of.
I.A.21497/2023 (u/S 12A of the Commercial Courts Act)
7. This is an application seeking exemption instituting pre-litigation mediation. Considering the facts of the case, where urgent interim relief is sought in respect of infringing pharmaceutical preparations, the exemption is allowed. The application is allowed and disposed of. I.A.21500/2023 (exemption from advance service to the Defendant No.2)
8. In view of the fact that the Plaintiff has sought ex parte ad-interim injunction, the exemption from advance service to the Defendant No.2 is granted.
9. Application is disposed of.
I.A.21501/202310. The Plaintiffs are permitted to submit the documents in a sealed cover. The application is disposed of.
CS (COMM) 782/2023
11. Let the plaint be registered as a suit.
12. Issue summons to the Defendants through all modes upon filing of Process Fee. Mr. Chawla, ld. Counsel accepts notice for the Defendant No.1.
13. The summons to the Defendants 2 & 3 be also issued. The written statement to the plaint shall be positively filed within 30 days from date of receipt of summons. Along with the written statement, the Defendants shall also file an affidavit of admission/denial of the documents of the Plaintiffs, CS(COMM) 782/2023 Page 2 of 11 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:27 without which the written statement shall not be taken on record.
14. Liberty is given to the Plaintiffs to file the replication within 15 days of the receipt of the written statement(s). Along with the replication, if any, filed by the Plaintiffs, an affidavit of admission/denial of documents of the Defendants, be filed by the Plaintiffs, without which the replication shall not be taken on record. If any of the parties wish to seek inspection of any documents, the same shall be sought and given within the timelines.
15. List before the Joint Registrar for marking of exhibits on 13th December, 2023. It is made clear that any party unjustifiably denying documents would be liable to be burdened with costs.
16. List before Court on 15th March, 2024.
I.A. 21496/2023 (u/O XXXIX Rules 1 & 2 CPC)
17. Issue notice.
18. The present suit has been filed by the Plaintiffs - Glaxo Group Limited - Plaintiff No.1 and GlaxoSmithKline Pharmaceuticals Limited seeking protection of the trademark 'ZENTEL' and 'T-BACT'.
19. The Plaintiffs in the present case are members of GSK group of companies which is a science-led global healthcare company. The Plaintiffs provides pharmaceutical products like AUGMENTIN, CALPOL, CBADEX CZS, NEOSPORIN, CEFTUM, SUPACEF, ELTROXIN, BETNOVATE, and T-BACT. The Plaintiff No.2 has a manufacturing unit in Nashik, Maharashtra comprising of 22 contract manufacturing facilities, 23 carrying and forwarding agents, 2 central warehouses and over 5,300 stockists.
20. The Plaintiffs operates its website from the domain name https://india-pharma.gsk.com/en-in/ . The Plaintiffs also launched a My Vaccination Hub portal at the website https://myvaccinationhub.co.in/, CS(COMM) 782/2023 Page 3 of 11 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:27 which provides vaccination related informations to consumers. It is stated that the Plaintiffs have a turnover of approximately Rs. 3216 crores till march, 2023.
21. The mark 'ZENTEL' was adopted by the Plaintiffs in 1982 in respect of antiparasitic medicinal use for the treatment of parasitic worm infections. The said product was launched in India in 1986. The mark 'ZENTEL' is also registered since 1980, the details of which are as under:
22. The product 'ZENTEL' of the Plaintiffs consists of 'Albendazole', which is stated to work by inhibiting tubulin polymerization. The product is an antibiotic sold in various forms including tablets, oral suspension and chewable tablets etc. The Plaintiff No.2 has been authorized to use the mark 'ZENTEL' in India.
23. Insofar as the mark 'T-BACT' is concerned, the product was launched under the said mark in India in the year 1996. The 'T-BACT' product of the Plaintiffs consists of an antiseptic Mupirocin Ointment which is used for the treatment of secondary bacterial infections. It is also a registered mark, the details of the which are as under:
CS(COMM) 782/2023 Page 4 of 11This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:27
24. The Plaintiffs have placed reliance on a decision of coordinate bench of this Court in CS (COMM) 391 of 2023 titled Glaxo Group Ltd. and Anr. V. Rakesh Bhikhalal Shah and Ors., wherein this Court had passed an interim injunction order restraining Defendants from dealing in products under the mark 'Z-BACT'.
25. The Defendants in the present case are - K.R. Pharma - Defendant No.1, A.K. Healthcare - Defendant No.2 and GMT Pharma International - Defendant No.3. Defendant No.1 is the marketing company of pharmaceutical preparations under the marks 'ZENTLE' and 'TZ-BACT'. Defendant Nos. 2 and 3 are the manufacturers of pharmaceutical preparations under the marks 'ZENTLE' and 'TZ-BACT' respectively for Defendant no.1.
26. The Plaintiffs came across the Defendant No.1's listing on websites like www.indiamart.com. It is averred by the Plaintiffs that on these websites as also its own website, the Defendant No.1 represents itself as 'wholesale trader, exporter and service provider of pharmaceutical capsules, pharmaceutical tablets, face masks and many more'. It is also claimed that the Defendant No.1 exports its products to Dubai and Qatar.
27. The Plaintiffs are aggrieved by the Defendants' use of the mark 'ZENTLE' and 'TZ-BACT' in respect of their pharmaceutical preparations.
CS(COMM) 782/2023 Page 5 of 11This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:27 A comparative chart of the Plaintiff's and Defendants products are set out below:
ZENTEL & ZENTLE Plaintiff's Product Defendants Product CS(COMM) 782/2023 Page 6 of 11 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:27 T-BACT & TZ-BACT Plaintiff's Product Defendants Product
28. Ld. counsel for the Plaintiffs submits that the Defendants are manufacturing, selling and offering for sale multivitamin products under the mark 'ZENTLE' but have copied the description of Plaintiff's antibiotic on the trade listings. The said listings are set out herein below:
CS(COMM) 782/2023 Page 7 of 11This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:27
29. The infringing products have also been promoted on the website of the Defendant No.1 including on Indiamart and other trade listings. The website of the Defendant No.1 is www.krpharma.org.in. The second product 'TZ-BACT' is used in respect of Piperacillin & Tazobactam injection. The said image is set out below:
CS(COMM) 782/2023 Page 8 of 11This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:28
30. Mr. Chawla, ld. Counsel appearing for the Defendant No.1 accepts summons and notice.
31. A perusal of the website and other documents, which have been placed on record, would show that the Defendants are indulging in misrepresentation and fraudulent manufacture and sale of the medicinal preparations. It is inexplicable as to how a multivitamin product is carrying a description of the Plaintiff's antibiotic, that too with almost identical brand name. The manner in which the Defendants are manufacturing and selling these products would show that there is a threat to the safety of patients' interest, inasmuch as any patient which is prescribed the antibiotic of the Plaintiffs ZENTEL may be administered Defendants' product 'ZENTLE', which is merely a multivitamin. Moreover, the manner in which the descriptions are also wrongly promoted on the website including for dealerships, franchisees etc., also shows that the Defendants are together CS(COMM) 782/2023 Page 9 of 11 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:28 indulging in misleading the trade and public also. In addition, the Defendant No.1 on its website also claims to be exporting its products to countries such as Nepal, Tajikistan, Uzbekistan, Sri Lanka, Yemen and Bangladesh, where it claims to be having registration with the drug authorities. The export of such misdescribed products with similar marks and names, cannot be permitted at any cost.
32. Mr. Chawla, Ld. Counsel for the Defendant No.1, however submits that the Defendant No.1 has taken down the website immediately upon receiving the advance copy of the paper book and is willing to suffer permanent injunction.
33. The Court is of the considered view that a prima facie case has been established by the Plaintiffs in view of the fact that the Defendants are trying to sail close to the Plaintiffs' goodwill and reputation by using deceptively similar mark as that of the Plaintiffs. Balance of convenience also lies in favour of the Plaintiffs because if an injunction is not granted against the Defendants at this stage, it will cause irreparable loss not only to the Plaintiffs but also to the consumers who might be consuming or using the Defendants' pharmaceutical products under the impression that these are Plaintiffs products used as antibiotics and as antiseptic creams respectively.
34. Accordingly, it is directed that the Defendant No.1 and anyone else acting for and, on its behalf, shall stand restrained from manufacturing, selling and offer for sale or advertising, promoting and exporting the product in any manner under the mark/name 'ZENTLE' and 'TZ-BACT' or any other marks or names which are identical/similar to the Plaintiff's ZENTEL and T-BACT. In addition the Defendants are restrained from misdescribing their medicinal products. Since the Defendant no.1 is willing for a CS(COMM) 782/2023 Page 10 of 11 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:28 permanent injunction in these terms, the injunction qua Defendant no.1 shall be a permanent injunction. Decree sheet only qua Defendant no.1 be drawn in these terms. However, in respect of damages and costs etc., the Defendant no.1 wishes to file the written statement.
35. The Defendant No.1 shall also place on record the complete statement of sales of the products under the mark 'ZENTLE' and 'TZ-BACT'. Insofar as the Defendant Nos.2 & 3 are concerned, they shall also stand restrained in identical terms by way of an interim injunction.
36. In addition, considering the fact that the claims of the Defendants is that these products are being exported, it is unclear as to how such products could even be licensed by the DGCI/ State Drug Department, bearing in mind the recent reports where the medicinal preparations are exported without proper quality control. It is accordingly deemed appropriate to direct the DCGI to conduct an inspection of the Defendants' premises within four weeks and place a report before this Court within four weeks thereafter.
37. Compliance of Order XXXIX Rule 3 CPC, 1908 be made in respect of Defendant Nos.2 & 3 within one week.
38. Reply to the application be filed within four weeks from the service of the present order along with the paper book.
39. List the application before the Court on the date fixed above.
40. Mr. Harish V. Shankar has been requested to accept notice for the DCGI. The present order shall accordingly be communicated to the DCGI for compliance and filing of status report.
PRATHIBA M. SINGH, J.
OCTOBER 31, 2023/dk/ks CS(COMM) 782/2023 Page 11 of 11 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 01/11/2023 at 22:58:28