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Vol-V Part-9 September, 2010 IMPORTANT CASE LAWS Compiled by Tamil Nadu St...
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IN THE HIGH COURT OF DELHI
IA No. 5495/2008 in CS (OS) No. 851/2008Decided On: 24.07.2009Appellants:
Novartis AGVs.
Respondent:
Crest Pharma Pvt. Ltd. and Anr.Hon'ble Judges:
Manmohan Singh, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Pravin Anand, Binny Kalra and Vaishali Kakra, Advs.For Respondents/Defendant: Manish Kumar Jha, Adv. for D-1 and Shashi Shanker, Adv.for D-2
Subject: Intellectual Property RightsSubject: Civil
Acts/Rules/Orders:
Civil Procedure Code (CPC) - Sections 20 and 151 - Order 7, Rule 11 - Order 39, Rules 1and 2
Cases Referred:
Corn Products Refining Co. v. Shangrila Food Products Ltd. AIR 1960 SC 142;Amritdhara Pharmacy v. Satyadev Gupta AIR 1963 449; Remidex Pharma Pvt. Ltd. v.Sarita Pharmaceuticals 2006(33) PTC 157; Sun Pharmaceuticals Industries Ltd. v. WyethHoldings Corporation and Anr. 2005(3) PTC 14; Pifzer Ireland Pharmaceuticals v. IntasPharmaceuticals and Anr. 2004 (28) PTC 456 (Del); Sanat Products Ltd v. Glade Drugs& Nutracenticals Pvt. Ltd. and Anr. 2003 (27) PTC 525 (Del); Medley Laboratories Pvt.Ltd. Mumbai and Anr. v. Alkem Laboratories Ltd. 2002 (25) PTC 592 (Bom); SmithklinePharma (India) Ltd. and Ors. v. Prakash Setia and Ors. 2002 (25) PTC 482 (Del); CibaGeigy Ltd. v. Crosslands Research Laboratories Ltd. 1996 PTC (16) Del; Anglo French
Drug Co. (Eastern) (Bombay) v. Belco Pharmaceuticals (Haryana) PTC (Suppl.) (2) 452(P&H); Cadila Healthcare Ltd. v. Cadila Pharmaceuticals (2001) 5 SCC 73; GlenwoodLaboratories, Inc. v. American Home Products Corporation 173 USPQ 19(1972) 455 F.Reports 2d, 1384 (1972); Century Traders v. Roshan Lal Duggar & Co. AIR 1978 (Del)250; Laxmikant V. Patel v. Chetanbhat Shah and Anr. (2002) 3 SCC 65; BlansettPharmaceuticals Co. v. Carmick Laboratories Inc. 25 USPQ 2nd, 1473 (TTAB 1993);Cole Chemical Co. v. Cole Laboratories D.C. Mo. 1954, 118F. Supp. 612; R.J.Strasenburgh Co. v. Kenwood Laboratories Inc. 1955, 106 USPQ 379; LambertPharmacol Ltd. v. Bolton Chemical Corporation DCNY 1915, 219 F. 325; RanbaxyLaboratories Ltd. v. Dua Pharmaceuticals Pvt. Ltd. AIR 1989 Delhi 44; Kaviraj PanditDurga Dutt Sharma v. Navaratna Pharmaceutical Laboratories AIR 1965 SC 980; PankajGoel v. Dabur India Ltd. 2008 (38) PTC 49 (Del; LG Corporation and Anr. v.Intermarket Electroplasters (P) Ltd. and Anr. 2006 (32) PTC 429; Tata Iron & Steel Co.Ltd. v. Mahavir Steels and Ors. 47 (1992) DLT 412; Ramdev Food Products Pvt. Ltd. v.Arvindbhai Rambhai Patel and Ors. 2006(33) PTC 281 (SC); Colgate PalmoliveCompany and Anr. v. Anchor Health and Beauty Care Pvt. Ltd. 2003 (27) PTC 478 (Del)
JUDGMENTManmohan Singh, J.
1. By this order I shall dispose of this application being IA No. 5495/2008 under Order XXXIX Rules 1 & 2 read with Section 151 CPC.2. The facts of the case are that the plaintiff has filed a suit for permanent injunctionrestraining passing of, damages and delivery up etc.Plaintiff's case3. The plaintiff is manufacturing and selling pharmaceutical specialities and is in the business for the past 100 years. The plaintiff is the proprietor of the trademark SECEF., amedicinal formulation containing cefisime which is sold by the plaintiff in capsule andsuspension form.4. The trade mark SECEF, as per the plaintiff, was adopted in the year 1998 and is acoined word and is a distinctive trade mark. The said trade mark, according to the plaintiff, was available in many countries since late 1980s and early 1990s and in Indiasince May 2002. There was also a discussion in various pharmaceutical well known trade journals in the year 1988.5. The plaintiff's application for registration of the said trade mark is pending in Indiaunder No. 1494475 in class 5 dated 9th October, 2002. The plaintiff's earlier application bearing No. 814621 in class 5 was abandoned by it otherwise the trade mark wasregistered in 53 countries of the world.
6. As per the plaintiff, the trade mark SECEF has been continuously and extensively usedin India since May 2002 and has registered total sale of 20.7 crores till date. The plaintiff has alleged in the plaint that the trademark SECEF has earned substantial reputation andgoodwill and is associated with the goods of the plaintiff and has acquired valuablecommon law rights.7. In February, 2007 through its representative the plaintiff came across the product bearing the mark CECEF which is also a cefixime preparation meant for same indicationas that of the plaintiff.8. On enquiry, the plaintiff came to know that defendant No. 1 is using the said trademark. The products packaging revealed that it was being manufactured by defendant No.2. The search report also revealed that defendant No. 1 had applied for registration of thetrade mark under No. 1452902 in class 5.9. The plaintiff thereafter sent seize and desist letter dated 25th April, 2007. However,due to oversight, the plaintiff dispatched the said letter only on 18th August, 2007. Thesaid letter was returned undelivered with the postal remark "left returned to sender". Onfurther investigation, the address of defendant No. 1 and 2 was found and notices werereissued to three addresses on 22nd September, 2007. However, no response wasreceived from any of the addresses.10. The plaintiff thereafter issued the reminder on 8th November, 2007 offering anamicable resolution of the matter and in exchange the defendant No. 1 would withdrawhis trade mark application bearing No. 1452902 in class 5. The plaintiff thereafter received a reply in November, 2007 whereby the defendant No. 1 informed the plaintiff that they have taken steps to withdraw their trade mark application and attached the letter addressed to the trade mark office for withdrawing the said application.11. The plaintiff dispatched the said letter to the trade mark registry in the hope that itwould conclude the matter and enable an amicable settlement and the defendants wouldcease to use the trade mark CECEF.12. The plaintiff for the purpose of his satisfaction sent another letter dated 4thDecember, 2007 for the said clarification coupled with the final notice to the defendantson 12th February, 2008 for confirmation regarding the cease of the goods under thetrademark CECEF altogether. In spite of the various letters the defendants did not giveany reply and, therefore, the present suit has been filed by the plaintiff.13. The contention of the plaintiff is that the two trade marks SECEF and CECEF arevisually, structurally and phenotically similar and are also prescribed for the identicalindications and the use of the said trade mark CECEF by the plaintiff is unauthorized andunlicensed, therefore, the consumers, chemists and doctors are bound to be misled or deceived in believing these two products originating or approved by or connected withthe plaintiff in some way even though the medicine in question is a Schedule H drug.
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