Delhi High Court - Orders
Alkem Laboratories Ltd vs Deccan Healthcare Ltd on 20 February, 2019
Author: Jayant Nath
Bench: Jayant Nath
$~OS-21
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(COMM) 97/2019
ALKEM LABORATORIES LTD. ..... Plaintiff
Through Mr.Sagar Chandra, Ms.Srijan Uppal
and Mr.Ankit Rastogi, Advs.
versus
DECCAN HEALTHCARE LTD. ..... Defendant
Through
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
ORDER
% 20.02.2019 IA Nos.2664/2019 and 2665/2019 (exemption) Allowed subject to all just exceptions.
CS(COMM.) 97/2019 Let the plaint be registered as suit. Issue summons to the defendants by speed post and ordinary process, returnable for 27.5.2019.
IA No.2662/2019Issue notice to the defendants by ordinary process and speed post for the date fixed above.
This is an application under Order 39 Rules 1 and 2 CPC seeking ex parte injunction to restrain the defendants, their directors, executives, partners etc. from manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner using directly or indirectly in relation to any pharmaceutical and/or medicinal preparation and/or such allied and cognate goods under the impugned mark "A TO Z DECC" or any other identical and/or deceptively similar mark to the plaintiff's mark A TO Z, A TO Z NS and A TO Z Family of Marks amounting to infringement of the plaintiff's registered marks. The plaintiff has filed the accompanying suit seeking a decree of permanent injunction restraining the defendants, their directors, executives, partners or proprietors etc. from manufacturing, selling, offering for sale, exporting, advertising, marketing and/or in any manner using directly or indirectly the said impugned trademark. The case of the plaintiff is that they have adopted the mark A TO Z for health supplement, pharmaceutical and medicinal preparations and substances in 1997. They applied for registration of the mark in class 29 on 7.3.2007 claiming use since 1.4.1998. It is further pleaded that the plaintiff came across the product of the defendant's 'A TO Z DECC'. The plaintiff was shocked to see that the defendant has not only used a nearly identical mark but has employed an identical trade dress. Hence, the present suit.
I have been shown the impugned product launched by the defendant where the packaging is virtually similar to the trade dress of the plaintiff. That apart, defendant is also using the trademark A TO Z by adding the word DECC in small font in front of the said trademark.
The plaintiff has made out a prima facie case. Balance of convenience is in favour of the plaintiff. Till the next date, defendants are restrained from using the impugned trademark A TO Z DECC or any other mark identical or deceptively similar to the mark of the plaintiff 'A TO Z', 'A TO Z NS' and A TO Z Family of Marks, A TO Z NS Carton, A TO Z NS Blister Strip, A TO Z New Carton and A TO Z New Blister Strip. Defendant is also restrained from using the trade dress similar to the plaintiff's trade dress.
Plaintiff to comply with provisions of Order 39 Rule 3 CPC within ten days from today.
IA No.2663/2019This application is filed under order XXVI Rule 9 CPC seeking appointment of a Local Commissioner to visit the premises of the defendant as under:-
Plot No. #13-3, SIDCUL, Integrated Industrial Area, Pant Nagar, Udham Singh Nagar - 263153, Uttrakhand It has been prayed that an inventory be made by the Local Commissioner of the impugned products A TO Z DECC, A TO Z DECC Carton, A TO Z Blister Strip or any other products bearing similar trademark as that of the plaintiff's trademark A TO Z, A TO Z NS, or A TO Z Family of Marks, A to Z NS Carton, A TO Z NS Blister Strip, A TO Z NS NEW Carton and A to Z NEW Blister Strip. It is also prayed that the impugned goods be taken in custody and returned back to the defendant on superdari after making inventory. Present application is allowed.
Mr.Sachin Jain, Advocate (Mobile No.9968228310) is appointed as the Local Commissioner to visit the abovesaid premises of the defendants. The Local Commissioner is directed to search the premises of the defendant for any such products as noted above, make an inventory of all infringing products including but not limited to medicines, packaging, brochures, labels, stationery, dies, moulds etc. bearing the impugned trade mark/label, business cards, stationery, seal/rubber stamps, cash memos, bill books, vouchers, printed matter, catalogues, pamphlets, brochures, letterheads, labels or any other material bearing the mark or any other identical/deceptively similar mark to the plaintiff's marks A TO Z, A TO Z NS and A TO Z Family of Marks, A TO Z NS Carton, , A TO Z NS Blister Strip, A TO Z NS NEW Carton and A TO Z NS New Blister Strip. After making the above inventory, the Local Commissioner shall confiscate and take into custody the infringing products. Thereafter the products may be released to the Defendants on superdari, retaining a few samples for deposit in Court;
The Local Commissioner need not give any advance notice to the defendant. The representative of the plaintiff and their counsel will assist the Local Commissioner in carrying out the necessary work. The Local Commissioner shall also sign books of accounts etc. and take a copy of the same lying at the site. The Local Commissioner is also permitted to hire a photographer who will take photographs of the infringing products at the site. Fee of the Local Commissioner is fixed at Rs.1,00,000/- plus out of pocket expenses which shall be borne by the plaintiff.
The SHO of the concerned Police Station where the above premises is located will ensure that appropriate police protection is granted to the Local Commissioner to enable him to execute the necessary work.
Application stands disposed of.
A copy of the order be given dasti to learned counsel for the plaintiff under signatures of the Court Master.
JAYANT NATH, J FEBRUARY 20, 2019 n