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I.A. No.23086/2012

1. The present application is filed under Order 39 Rules 1 and 2 CPC seeking injunction to restrain the defendants etc. from manufacturing or offering for sale medicinal or pharmaceutical preparations under the trademark „AMAFORTEN‟ or any other mark deceptively similar to the plaintiff‟s registered trademark „ANAFORTAN‟. Other connected reliefs are also sought for. The accompanying plaint is filed by the plaintiff stating that it is a wholly owned subsidiary of Abbott Laboratories, Chicago, USA which was founded in the year 1888. The trademark „ANAFORTAN‟ is stated to be an invented mark having no dictionary meaning. It is also not derived from any principal ingredient/formulation of the drug. The said mark has the active ingredient of „Camylofin Dihydrochloride with Paracetamol‟. The said mark was originally stated to be owned by Khandelwal Laboratories Pvt.Ltd. (KLPL) who was stated to be registered proprietor of the said mark in respect of medicinal and pharmaceutical veterinary preparations since 1.12.1998. On 15.4.2008 the said Khandelwal Laboratories Private Limited entered into an agreement of „Brand Transfer and Knowhow License Agreement‟ with Nicholas Piramal India Ltd. (NPIL) whose name was later on changed to Piramal Healthcare Limited. The said Piramal Healthcare Limited assigned the trademark to the plaintiff vide Agreement dated 8.9.2010. The plaintiff vide application dated 21.2.2011 had sought to bring on record the change of proprietor of the trademark registered with the Trade Marks Registry.

3. Regarding the defendants it is stated that defendant No.1 is the sole proprietorship concern of Birani Pharmaceuticals and is said to be carrying on business from Patna, Bihar and is a marketer of pharmaceutical and medicinal preparations. The said defendant No.1 is stated to be marketing the drug containing „Camylofin Dihydrochloride with Paracetamol‟ in the form of Tablets under the brand name „AMAFORTEN‟ which is similar to the plaintiff‟s product „ANAFORTAN‟. Defendant No.2 is stated to be a private limited company which is stated to be engaged in manufacturing of the drug for defendant No.1. Plaintiff states that in July 2012 through market enquiries it came to know about the unauthorised use of the „AMAFORTEN‟ mark by the defendants. It also came to know that defendant No.1 has surreptitiously registered the similar mark „AMAFORTEN‟ in Class 5. It is stated that the plaintiff intends to file rectification proceedings against the aforesaid registration of defendant No.1 as the said mark is said to have been registered in bad faith and the mark has invalidly remained on the Register. It is stated that a lot of efforts were made by the plaintiff to locate the identity of the person manufacturing and selling the drug with the impugned trademark as the product that was being sold was on a very small scale and was not in an organised manner.

25. We may now have a look at the facts of the case. The trademark of the plaintiff is ANAFORTAN. The trademark of the defendant is AMAFORTEN. The wrappers of the two drugs have been placed on record and are depicted as follows:-
Plaintiff's Product Defendant's Product
26. The trademark of the plaintiff is registered on 1.12.1988. As per the pleadings of the plaintiff, the predecessors of the plaintiff have used the said trademark for decades. The sales figures of the said product using the said trademark subsequent to the Assignment Agreement of 8.9.2010 are placed on record. From September to December 2010 sales of `7.8 crores was achieved and in the calendar year 2011, a sale of `23.047 crores was achieved. It has further been established that the drug sold by the plaintiff and the defendant have the same ingredients and have the same therapeutic use. The said drugs are used for relief in abdominal pain and intestinal colic. The active ingredient of both the drugs is „Camylofin Dihydrochloride with Paracetamol‟.