Delhi High CourtGlaxo Smith Kline Pharmaceuticals Ltd. vs Unitech Pharmaceuticals Pvt. Ltd. on 16 December, 2005Author:Sanjay Kishan KaulBench:Sanjay Kishan KaulJUDGMENT

 

Sanjay Kishan Kaul, J.1 The plaintiff is a limited company incorporated and registered under theCompanies Act, 1956and the suit has been filed through Mrs. Sree K. Patel, Senior General Manager of the plaintiff company, who is authorised in pursuance to board resolution dated 21.07.2003.2. The plaintiff has filed suit against the defendant for permanent injunction, infringement of trade name, copyright, rendition of accounts in respect of registered trademark of plaintiff PHEXIN. Learned counsel further state that defendants are selling products under the trademark FEXIM which is deceptively similar to that of the plaintiff. The carton of the defendant has been annexed as Annexure Y which is exhibited as Ex.P-2. The interim orders have been passed in favor of the plaintiff at the stage of issuance of summons in the suit on 23.04.2004 The defendants were served with the summons in the suit and the application, but none chose to appear to defend the suit. The interim orders were confirmed and the defendants were proceeded ex parte.3. The plaintiff has filed the ex parte evidence of Mrs. Patel. The said witness has proved the packaging material/carton of the plaintiff as P-1.4. The plaintiff claims to be a leading research based pharmaceutical and healthcare company with large RandD budget of over 2.3 billion Pounds and is the registered proprietor of trademark `CEFTUM' and `PHEXIN 'in respect of pharmaceutical, veterinary preparations and sanitary substances. The plaintiff has been using the trademark CEFTUM in respect of anti-biotic tablets for infectious diseases since 1993 in distinctive packing material. The trademark `PHEXIN' has been used for pharmaceutical preparations.5. The defendants are selling anti-biotic tablets with the trademark `FEXIM' with the packing material (Annexure Y) which is exhibited as Ex.P-2. The packaging is stated to be deceptively similarly to that of the plaintiff.6. The plaintiff claims that the act of the defendants is a deliberate and dishonest act, not only to infringe the trademark of the plaintiff but to pass off the goods as that of the plaintiff as the two marks are stated to be also phonetically similar. The defendants have failed to appear or defend the suit against the allegations made in the plaint.7. A decree is passed in favor of the plaintiff and against the defendants for permanent injunction restraining the defendants from using the trademark `FEXIM' or any trademark deceptively similar to the trademark of the plaintiff `PHEXIN'. A further decree for permanent injunction is passed against the defendants from using any label/packaging material which is deceptively similar and contains the same pattern as that of the plaintiff Ex.P-1. The plaintiff has also be entitled to costs. No further relief is pressed by the learned counsel for the plaintiff.8. A perusal of the plaint shows that this plaint is deficiently stamped in view of the judgment in CS (OS) No. 1165/2001 titledPfizer Products, Inc. v. B L and Co. and Ors.decided on 03.10.2005. Learned counsel for the plaintiff undertakes to make up the deficiency good within three weeks.9. Decree sheet be drawn up on the deficient court fee being filed by the plaintiff.