Bombay High Court
Sun Pharma Laboratories Limited vs Madhusudan Pharmaceutical Agency And ... on 16 April, 2019
Author: S.J. Kathawalla
Bench: S.J. Kathawalla
kpd 1 / 3 925-NMCDL-877-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
IN ITS COMMERCIAL DIVISION
NOTICE OF MOTION (L) NO. 877 OF 2019
IN
COMMERCIAL IP SUIT (L) NO. 402 OF 2019
Sun Pharma Laboratories Limited ... Plaintif
Versus
Madhusudan Pharmaceutical Agency and another ... Defendants
WITH
LEAVE PETITION (L) NO. 153 OF 2019
Mr. Hiren Kamod alongwith Mr. Gautam Panchal and Mr. Vivek Singh instructed by
Gautam and Co. for the Plaintif.
Mr. S.C. Saboo for the Defendant.
Mr. Omprakash R. Agarwal, Proprietor of Defendant No.1, present.
CORAM : S.J. KATHAWALLA, J.
DATED : 16 th APRIL, 2019 P.C.:
1. Leave under Clause XIV of the Letters Patent Act is granted. The Leave Petition is accordingly disposed of.
2. Defendant No.1 is present in Court. He states that he had placed an order with Defendant No.2 to manufacture for him tablets/capsules bearing the mark 'PANCID'.
However Defendant No.2 manufactured the tablets/capsules bearing the mark 'PANTOCID-DSR' and supplied the same to him. He also states that the conduct of Defendant No. 2 is illegal / incorrect. If what Defendant No.1 states is true, then he ::: Uploaded on - 17/04/2019 ::: Downloaded on - 18/04/2019 01:07:50 ::: kpd 2 / 3 925-NMCDL-877-2019.doc was well aware that the impugned mark 'PANTOCID/DSR' is that of the Plaintif and that the same was manufactured by Defendant No.2 in violation of the intellectual property rights of the Plaintif. He therefore, ought not to have accepted the tablets / capsules bearing the mark 'PANTOCID-DSR' and further ought not to have sold the same. Defendant No. 1 is therefore certainly guilty of infringing the Plaintif's registered trade mark 'PANTOCID-DSR'.
3. Defendant No.1 shall file his Affidavit by 22 nd April, 2019. Defendant no.2 is directed to remain present in Court on 22 nd April, 2019, failing which the Court shall be constrained to pass necessary orders to secure his presence before the Court including issuing a warrant of arrest against him.
4. As stated hereinabove, Leave under Clause XIV of the Letters Patent Act, is granted. In view thereof, in addition to prayer Clauses (a) and (c) granted by the order dated 1st April, 2019, prayer Clause (b) of the Notice of Motion is also granted. The same is reproduced hereunder :-
"(b) that pending the hearing and final disposal of the suit, the Defendants by themselves, their directors, servants, agents, dealers, stockists and distributors be restrained by a temporary order and injunction of this Hon'ble Court from manufacturing, selling, advertising, distributing, marketing, exhibiting for sale or otherwise dealing in medicinal and pharmaceutical preparations bearing the impugned trade mark "PANTOCID-DSR" or any other trade mark deceptively similar to the Plaintif's said trade mark ::: Uploaded on - 17/04/2019 ::: Downloaded on - 18/04/2019 01:07:50 ::: kpd 3 / 3 925-NMCDL-877-2019.doc "PANTOCID/PANTOCID-DSR" so as to pass of their medicinal and pharmaceutical preparations as and for the well-known medicinal and pharmaceutical preparations of the Plaintif or in any other manner whatsoever."
5. Stand over to 22nd April, 2019.
( S.J.KATHAWALLA, J. ) ::: Uploaded on - 17/04/2019 ::: Downloaded on - 18/04/2019 01:07:50 :::