Manmohan Sarin, J.:— Plaintiff M/s Wockhardt Limited has filed the present suit seeking a perpetual injunction to restrain the defendants from infringing its registered trademark ANAL-GON bearing No. 460943 in class-5. The plaintiff also applied for registration of a distinctive label of “ANALGON” bearing No. 465665 in respect of medicinal, pharmaceutical and veterinary preparations. The said application was duly advertised in trade mark journal and so was the registration advertised in the journal. The plaintiff's petition for renewal of the trademark is pending.
2. The plaintiff seeks injunction to retrain infringement of the copyright in the artistic green coloured cartons and blister pack. The plaintiff claims that the defendant by using carton pack deceptively similar to that of the plaintiff's trademark has adopted a trademark PALGON alongwith deceptively similar cartons and blister packs are infringing the plaintiff's trademark and passing-off the goods as that of the plaintiffs.
3. The defendants were duly served but none appeared on their behalf and they were directed to be proceeded ex parte on 11.3.2002 The plaintiff was called upon to file affidavit by way of evidence.
4. The plaintiff has filed evidence by way of affidavit of its legal officer and constituted attorney Shri Rajesh Khanna.
5. The said deponent has duly proved on record a certificate of incorporation of the plaintiff company as Ex. PW1/1. The plaintiff's predecessor was M/s. Wockhardt Veterinary Ltd. The said company had been amalgamated with the plaintiff company vide approval agreement in company petition No. 1218/1999 on 31.1.2000 The said order has been produced and referred as Ex. PW1/4. The deponent Rajesh Khanna has proved his power of attorney Ex. PW1/2 and has also produced on record resolution of the Board of Directors Ex. PW1/3. It is deposed in the affidavit that the predecessor of the plaintiff company had adopted trademark ANALGON in respect of veterinary preparations in July, 1985. Exhibit PW1/5 is the certificate of legal proceedings in respect of the registered trademark. The plaintiffs predecessor had applied for registration of trademark “ANALGON” in a distinctive label in respect of medicinal, pharmaceutical and veterinary preparations and substances. The said trademark is duly registered and registration in respect thereof is Ex. PW1/6. The renewal petition is pending.
6. The deponent has also deposed that the veterinary product “ANALGON” containing salt albendazole is sold in a distinctive green carton containing ten blister packed tablets. The said carton constitutes an original artistic work under the provision of copyright act and has been authored by the employees of the plaintiffs predecessor under a contract of service and copyright belongs to the plaintiff. It is claimed that veterinary preparation “ANALGON” in distinctive trade dress has come to be known as originating from the plaintiff company exclusively. It is claimed that total sales of the plaintiffs product from 1992 to June, 2001 are over Rs. 50 crores. It is averred that the said medicinal product “ANALAGON” is of a superior quality and use of the same over a decade by the consumers in general has acquired unique reputation and goodwill.
7. The plaintiff learnt in January, 2002 that the defendants have launched a deceptively similar veterinary preparation with a deceptively similar trade mark “PALGON BOLUS” alongwith deceptively similar cartons and blister packs. Defendant No. 2 is the manufacturer of the infringing product “PALGON Bolus” and defendant No. 1 is its agent.
8. A perusal of the two products i.e The carton and blister packs of “ANALGON” and “PALGON Bolus” shows that they are deceptively similar. The defendant has copied in entirety the essential features of the artistic carton and blister pack of the plaintiff. The colour combination, getup and placement etc. of both the products are identical and deceptively similar to each other. Adoption of the impugned trade mark “PALGON Bolus” alongwith its deceptively similar packing and the identical veterinary preparation is actuated by mala fides and with intention to encash upon and the reputation and goodwill of the plaintiff. The said adoption is merely to cause confusion and deception.
9. From the facts and the documents, as proved on record, the plaintiff has fully proved its incorporation and institution of the suit by a duly constituted attorney. The plaintiff has proved registration of the trademark ANALGON and its having copyright in the artistic work carton.
10. The plaintiff has also proved that adoption of the trademark “PALGON Bolus” in deceptively similar carton and blister packs, constitutes infringement of the plaintiffs trademark and copyright The plaintiffs accordingly entitled to an injunction as prayed for.
11. Counsel on instructions does not press the claim for damages and rendition of account The plaintiff is accordingly entitled to a decree as prayed for in para 28 (i), (ii), (iii) and (iv). The suit is decreed with costs of Rs. 5000/-. A decree is terms as prayed for in para 28(1)(ii)(iii)(iv) be drawn.