Biochem Pharmaceutical Industries Ltd. vs Interphar Healthcare Private Limited

S.J. Kathawalla, J.—This is an action initiated by the Plaintiff against the Defendants for infringement of Plaintiffs registered Trade Mark and wrongful act of Passing off. The Plaintiff urge that the Defendants by manufacturing and marketing the impugned pharmaceutical preparations have infringed the trade mark and also passed off the Defendants products as that of the Plaintiffs. This suit has appeared under the caption for "Ex parte decree". Since despite service of the Writ of summons on the Defendant, the Defendants have failed to file their appearance and defend the suit. The Plaintiff have examined one S.G. Choudhary, Factory Manager of the Plaintiff who has filed his Affidavit of Examination-in-Chief dated 13th March, 2013. The witness confirms the correctness of the contents of the Affidavit. The Affidavit, inter alia, reiterates the case set out in the plaint. Through the said evidence, the documents are tendered in the Court, which are taken on record and marked "X" for identification. The deponent Mr. S.G. Choudhary has produced the authorization by way of true copy of Resolution dated 15th October, 2012, passed by the Plaintiff in the meeting of the Board of Directors of the Company. The'' said document is marked as Exhibit-X1.

The Witness of the Plaintiff deposed that plaintiff is a company registered under the Companies Act, 1956, and is engaged in business inter alia as manufacturers, marketing and exporters of various Pharmaceutical and health related products and medicinal preparations. He deposed that the Plaintiffs products are sold under various distinctive Trade Marks. The Plaintiff has produced the Certificate of Chartered Accountant certifying the Annual Turnover of Pharmaceutical products sold by the plaintiff from year 2009 to 2012. The said document is marked as Exhibit-P.1.

The witness has deposed that the Plaintiff has introduced "Ampicillin and Dicloxacillin, Cloxacillin" for treatment of Fever, Pharyngitis, Bronchitis & Skin and Soft tissue infections (SSTIs) under the trade mark "AMPILOX". The Plaintiff applied for registration of Trade Mark "AMPILOX" under Class 5 vide Application No. 299425 dated 20th September, 1974 under the Trade Marks Act and obtained Registration Certificate of the said mark "AMPILOX" on 15th April, 1981. The Trade Mark registration Certificate dated 15th April, 1981 is marked as Exhibit-P2. The Plaintiff''s witness deposed that the legal proceedings Certificate of registration of Trade Mark (TM46) "AMPILOX" issued on 30th October, 2012 by the Trade Mark Registry, and the same is marked as Exhibit-P3. The Witness stated that the Plaintiff has obtained Copyright for the product "AMPILOX" under various pharmaceutical and medicinal preparations. The plaintiff has produced and tendered the Original Copyright Registration Certificate issued by Copyright Office along with the Label of the said product "AMPILOX" which is registered under Copyright Act, 1957. The same is marked as Exhibit-P4. The Plaintiffs witness deposed that the Plaintiff has filed requisite form TM23 & TM-24 with the Trade Marks Registry to bring its name on record by changing the name of the company as Biochem Pharmaceutical Industries Ltd. The Plaintiff''s witness has produced and tendered the copy of TM23 & TM24 issued on 8th October, 2009 and the same is marked as Exhibit-P5.

The Plaintiff''s witness has deposed that in or about August, 2012 the Plaintiff''s field staff learnt and reported to the Plaintiff that the Defendant is wrongly and illegally infringing the impugned mark "Ampilox" and were marketing the product containing Ampicillin and Dicloxacillin wrongly and dishonestly thereby passing off their product as that of the Plaintiff. In proof thereof, the Plaintiff has produced the packet of the Defendants products along with the payment receipt and marked as Exhibit-P6.

The Plaintiff''s Witness has deposed that in a similar matter, another Company viz; BioEthicials Pharma Private Limited also wrongfully and illegally infringed the Plaintiff''s registered trade mark "AMPILOX" by using the trade mark "AMPICLOX". A suit was filed against the BioEthicials Pharma Private Limited being suit No. 3611 of 1994 and the Hon''ble Court was pleased to pass Ex parte Decree dated 14th January, 2008. A Certified Copy of the Decree is produced and tendered and marked as Exhibit-P7.

The Plaintiff''s witness has deposed that the impugned mark "Ampilox" of the Defendant is phonetically, visually and structurally identical with and/or deceptively similar to the Plaintiffs registered trade mark "AMPILOX". The plaintiff has further stated that the user of the impugned trade mark by the Defendants constitutes infringement of the Plaintiffs trade mark "AMPILOX" and passing off. The Plaintiffs says that the Defendant has illegally and wrongly adopted and is illegally using the mark "AMPILOX". The Defendant does not have any right, title, authority or License to introduce, manufacture and market any drug or medicine under the Trademark "AMPILOX" and that the wrongful conduct of the defendant tantamounts to infringement of the Plaintiff''s registered trademark "AMPILOX". The adoption of the mark "AMPILOX" by the Defendant is deliberate and neither accidental nor coincidental but is a dishonest and fraudulent act to capitalize and trade upon the goodwill and reputation of the Plaintiff''s product under the registered trademark "AMPILOX" to make illegal gains.

In assessing the similarity of the rival marks in the present case, no oral evidence is necessary. Comparison of the plaintiffs'' mark with that of the defendants'' impugned mark shows that the Defendant''s mark "AMPILOX" is phonetically, visually and structurally similar to the plaintiff''s registered Trade Mark "AMPILOX". Hence, the defendant user of the said trademark "AMPILOX" is illegal and constitutes an infringement of the plaintiff''s rights as the registered proprietor of the trademark "AMPILOX". The Plaintiff has also established that it has acquired reputation and goodwill in its mark, sufficient to maintain successfully an action for passing off.

I have gone through the averments made in the plaint and in the evidence of the plaintiff and the documents marked in Evidence and also heard the learned Advocate for the Plaintiff. The document at Exhibit P2 & P4 shows that the plaintiffs are the registered owners of the trade mark "AMPILOX" since 1974 and that the said registration is valid and subsisting till 20/9/2019. The documents at Exhibit-P1 and P5 shows the huge annual sales turnover of the product of the plaintiff.

There is nothing on record before the Court that militates against anything that has been averred in the plaint and deposed to by the witness.

The Defendants were served with the writ of summons and an affidavit dated 27th February, 2013 proving service of the writ of summons. However, the Defendants are absent and have also not filed written statement. The evidence of the witness stands uncontroverted and unchallenged.

In the circumstances, the suit is decreed in terms of prayer clauses (a), (b) and (c). Cost to be quantified as per rules. Notice of Motion No. 429 of 2013 also stands disposed of.

Considering the nature of infringement and with a view to dissuade others from indulging into such activities, it is imperative that some punitive damages are awarded to the Plaintiff. I, therefore award punitive damages amounting to Rs. 1,00,000/- to the Plaintiff and against the Defendants. The Office shall return the original documents to the Advocate for the Plaintiffs upon the Advocate for the Plaintiff handing over Photostat copies of the said documents duly certified as true copies.