Delhi High Court - Orders
Glaxo Group Limited vs Sai Tech Medicare Pvt. Ltd. & Anr on 10 August, 2020
Author: Mukta Gupta
Bench: Mukta Gupta
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 309/2020
I.A. 6667/2020 (under Order XXXIX Rule 1 and 2 CPC)
I.A. 6668/2020 (under Order XI Rule 1 (4) Commercial Courts Act)
I.A. 6669/2020 (exemption from filing original, clear documents)
I.A. 6670/2020 (exemption from filing notarised affidavits)
I.A. 6671/2020 (exemption from filing court fee)
GLAXO GROUP LIMITED ..... Plaintiff
Represented by: Ms.Shwetasree Majumder, Advocate
with Ms.Tanya Varma & Ms.Eva
Bishwal, Advocates
versus
SAI TECH MEDICARE PVT. LTD. & ANR. ...... Defendant
Represented by: None
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
ORDER
% 10.08.2020 The hearing has been conducted through video conferencing. I.A.6669/2020 (exemption)
1. Exemption is allowed subject to all just exceptions. Original documents, if any, be filed within one week of the resumption of the normal Court functioning.
2. Application is disposed of.
I.A. 6670/2020 (exemption from filing notarised affidavits)
1. Plaintiff is exempted from filing the attested affidavits in support of CS(COMM) 309/2020 Page 1 of 5 the plaint and applications at this stage and the same be filed within one week of the resumption of the normal Court functioning.
2. Application is disposed of.
I.A.6671/2020 (exemption from filing court fee)
1. By this application, the plaintiff seeks extension of time for filing the Court fee.
2. Learned counsel for the plaintiff states that the Court fee has already been applied for. Court fee be filed within one week.
3. Application is disposed of.
I.A.6668/2020 (under Order XI Rule 1(4) Commercial Courts Act)
1. Additional documents, if any be filed within thirty days.
2. Application is disposed of.
CS(COMM) 309/2020 I.A. 6667/2020 (under Order XXXIX Rule 1 and 2 CPC)
1. Plaint be registered as a suit.
2. Issue summons in the suit and notice in the application to the defendants on the plaintiff taking steps through Email, SMS and Whatsapp, returnable before this Court on 14th October, 2020.
3. Written statements and reply affidavits in the suit and application along with the affidavits of admission-denial will be filed within thirty days of the receipt of the summons and notice. Replication and rejoinder affidavit along with the affidavit of admission-denial within three weeks thereafter.
4. The present suit has been filed by the plaintiff Glaxo Group Limited impleading Sai Tech Medicare Pvt. Ltd. as defendant No. 1 and Knoll Healthcare Pvt. Ltd. as defendant No. 2, inter alia, seeking decree of permanent injunction, damages, rendition of accounts, delivery up etc. CS(COMM) 309/2020 Page 2 of 5
5. Case of the plaintiff is that in the year 1967, the plaintiff adopted the trade mark AUGMENTIN for its anti-biotic drug Amoxycillin and Potassium Clavulanate. The trademark AUGMENTIN was registered in India on 23rd October, 1979 in class 5. In the year 1994, the plaintiff's product/anti-biotic drug under the trademark AUGMENTIN was launched in India. Plaintiff adopted the trade dress with a green and white packaging for its product i.e. Amoxycillin and Potassium Clavulanate tablets in the year 2001 and since then, the plaintiff's said trade dress has acquired a distinction and popularity. In the plaint, the plaintiff has also given its sales figures and stated that in the year 2011, plaintiff's anti-biotic drug under the trademark AUGMENTIN became the highest selling drug in India.
6. Grievance of the plaintiff in the present suit is that in January 2020, the plaintiff discovered that the defendants were selling their anti-biotic drug with the same salt under the mark MOXINCLAV with identically/deceptively/confusingly similar packaging as that of the plaintiff. On 25th January, 2020, the plaintiff's representative purchased the defendants' product in Delhi and thereafter, again made a purchase of same product on 29th July, 2020 in Delhi. Hence the present suit.
7. Learned counsel for the plaintiff also points out that this Court in CS (COMM) 329/2019 Glaxo Group Ltd vs Anglo-French Drugs and Industries Ltd. filed by the plaintiff had granted an ex parte ad-interim injunction against two defendants i.e. Anglo-French Drugs and Industries Ltd. and the defendant No. 2 therein being the present defendant No. 1 herein, wherein, the defendants were selling the same anti-biotic drug under the name ANGLOMENTIN and were selling it in a trade dress i.e. green and white packaging which is deceptively similar to that of the plaintiff. This Court CS(COMM) 309/2020 Page 3 of 5 vide order dated 21st June, 2019 not only granted an ex parte ad-interim injunction from use of the mark ANGLOMENTIN/ANGLOMENTIN DUO or any other mark which is deceptively similar to the plaintiff's trademark AUGMENTIN/AUGMENTIN DUO but also the trade dress/packaging including the green and white packaging in relation to the identical product i.e. Amoxycilin Potassium Clavulanate tablet.
8. Learned counsel for the plaintiff states that the defendant No. 2 in CS (COMM) 329/2019 which is defendant No. 1 herein i.e. Sai Tech Medicare Pvt. Ltd. along with different defendant No. 2 has started selling the same anti-biotic drug under the name MOXINCLAV. However, the packaging of the said product remains identical/deceptively/confusingly similar to that of the plaintiff.
9. A comparison of the two packaging i.e. one of the plaintiff and other of the defendants is as under:-
Plaintiff's drug (front and back side):-
Defendants' drug (front and back side):-CS(COMM) 309/2020 Page 4 of 5
10. A perusal of the above two packaging shows that the packaging of the defendants' for the identical product with the same chemical composition is confusingly/deceptively similar to the plaintiff's trade dress for the same product, therefore, there is a likelihood for the consumers being confused. Considering the averments in the plaint as also the documents filed therewith, this Court finds that the plaintiff has made out a prima facie in its favour and in case no ad-interim ex-parte injunction is granted, the plaintiff would suffer an irreparable loss. The balance of convenience also lies in favour of the plaintiff. Consequently, an ad-interim ex-parte injunction is granted in favour of the plaintiff and against the defendants in terms of prayer (a) of IA 6667/2020 till the next date of hearing before this Court.
11. Compliance under Order XXXIX Rule 3 CPC be done within one week.
12. Order be uploaded on the website of this Court.
MUKTA GUPTA, J.
AUGUST 10, 2020 akb CS(COMM) 309/2020 Page 5 of 5