Delhi High Court - Orders
Dr. Reddys Laboratories Limited vs Fast Cure Pharma on 30 November, 2021
Author: C.Hari Shankar
Bench: C.Hari Shankar
$~8(Original Side)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 436/2021 & I.A. 11821/2021
DR. REDDYS LABORATORIES LIMITED ..... Plaintiff
Through: Mr. Ranjan Narula, Adv.
versus
FAST CURE PHARMA ..... Defendant
Through: None
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
ORDER
% 30.11.2021 I.A. 11821/2021 (under Order XXXIX, Rules 1 & 2, read with Section 151 of CPC, 1908- for interim relief)
1. Notice was issued, on this application, on 14th September, 2021. Despite service, the defendant has not appeared or chosen to file any written statement in response to the plaint or any reply to the application for interim relief.
2. The Court has, therefore, heard Mr. Narula, learned Counsel for the plaintiff and proceeded to decide this application.
3. The plaintiff alleges infringement, by the defendant, of the plaintiff's trademark, "RAZO", by using the mark "RAZOFAST", which is alleged to be deceptively similar to the "RAZO" mark of the plaintiff and is used in respect of identical pharmaceutical products. The active ingredient of the product of the plaintiff and the defendant is the same, i.e. Rabeprazole.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 436/2021 Page 1 of 6 Signing Date:02.12.2021 12:31:524. The plaintiff holds the following registrations:
S.No. Trademark Reg. No. Reg. Date Class
1. 1320974 18/11/2004 5
2. RAZO 2336815 24/05/2012 5
3. RAZO 2370917 27/07/2012 5
These registrations are stated to be valid and subsisting as on date.
5. The following photographs of the packs in which the plaintiff markets its products have also been provided in the documents filed with the plaint:
6. The plaint alleges that, towards the second week of August, 2021, the plaintiff came to know that the defendant was manufacturing Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 436/2021 Page 2 of 6 Signing Date:02.12.2021 12:31:52 and marketing rabeprazole tablets, under the mark "RAZOFAST".
7. This, alleges the plaint, was a transparent attempt at capitalising on the plaintiff's goodwill and creating an association between the product of the defendant and the mark of the plaintiff, with the suffix "FAST" added to the name to make it appear that the product would provide faster relief. It is alleged that the overall trade dress adopted by the defendant in respect of its product is also such as would enhance the possibility of confusion between the marks of the defendant and the plaintiff. Photographs of the defendant's packs are also provided with the plaint, and may be reproduced thus:
8. The impugned mark, "RAZOFAST", stands registered in favour of the defendant on 25th June, 2018. The defendant claims users since 6th February, 2017, whereas the plaintiff claims user since 2002.
Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 436/2021 Page 3 of 6 Signing Date:02.12.2021 12:31:529. A perusal of the submissions of Mr. Narula, seen in the light of the material on record, discloses to a prima facie case of infringement by the defendant of the plaintiff's registered mark, "RAZO". In the defendant's mark "RAZOFAST", prima facie, the dominant feature is the prefix "RAZO", which is identical to the plaintiff's registered mark. The trade dress of the defendant is also similar to that of the plaintiff. The products of the defendant and the plaintiff are the same, namely, rabeprazole. They are also available at the same retail outlets and cater to the same class of consumers. The triple identity test, of deceptive similarity of marks; identity of goods and availability through the same sources and catering to the same consumer base also stands satisfied in the present case.
10. This Court had granted an opportunity to the defendant to respond to this application, but the defendant has not chosen to do so. Nor is there any appearance on behalf of the defendant, either on the last date of hearing before the Joint Registrar or today, before this Court.
11. In view thereof, the Court is inclined to allow the application for interim relief. The prayers in this application read thus:
"18. In view of the abovementioned facts and circumstances and in the interest of justice and public interest, it is most respectfully prayed that this Hon'ble Court may be pleased to grant the following reliefs in favour of the Plaintiff and against the Defendant:
a) An ex-parte order against the Defendant, its partners, officers, servants, employees, dealers, agents, representatives, stockiest, distributors and all other persons acting on behalf the Defendant from manufacturing, marketing, supplying, selling and offering for sale including online sale, advertising, directly Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 436/2021 Page 4 of 6 Signing Date:02.12.2021 12:31:52 or indirectly medicinal and pharmaceutical preparations under the trademark RAZOFAST and/or any other mark identical or deceptively similar to the Plaintiffs mark RAZO and/or in any manner whatsoever as may be likely to cause confusion or deception amounting to infringement of the Plaintiffs trade mark registrations as mentioned in paragraph No. 9 of the plaint;
b) An ex-parte order against the Defendant, its partners, officers, servants, employees, dealers, agents, representatives, stockiest, distributors and all other persons acting on behalf the Defendant from manufacturing, marketing, supplying, selling and offering for sale including online sale, advertising, directly or indirectly medicinal and pharmaceutical preparations under the trademark RAZOFAST and/or any other mark identical or deceptively similar to the Plaintiffs mark RAZO and/or in any manner whatsoever as may be likely to cause confusion or deception amounting to passing off its goods and business as and for those of the Plaintiff;
c) An ex-parte order directing the Defendant about sale of the total products under the impugned mark RAZOFAST and provide the last batch number of product manufactured under the mark RAZOFAST with details of payments received;
d) An ex-parte order directing the Defendant to remove all listings of the impugned mark RAZOFAST from its websites, B2B websites or any other online directories, B2B, B2C website or portals that may be used by the Defendant to promote their products bearing the mark RAZOFAST or any other mark identical or deceptively similar to the Plaintiffs said mark links of which are herein below:-
Defendant's website https://fastcurepharma.co.in/products. php Third parties websites https://www.1mg.com/drugs/razofast-20mg-tablet-618025 https://www.medplusmart.com/product/RAZOFAST- 20MG-TAB/RAZO0079 https://mednear.com/drugs/razofast-20mg-tablet- Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 436/2021 Page 5 of 6 Signing Date:02.12.2021 12:31:52 6038c0f4394900003d01a819 https://dawaaghar.com/product/Razofast-20mg-Tablet-47
e) Any other and further relief(s) as this Hon'ble Court may deem fit and proper to meet the ends of justice."
12. The application stands allowed in terms of prayers (a), (b), (c) and (d) thereof.
C.HARI SHANKAR, J NOVEMBER 30, 2021 SS Signature Not Verified Digitally Signed By:SUNIL SINGH NEGI CS(COMM) 436/2021 Page 6 of 6 Signing Date:02.12.2021 12:31:52