2015 (3) TMI 325 - HC - Indian Laws

Infringement of Trademark - Trademark application pending for disposal - Violation of common law rights - Punitive damages along with compensatory damages - Held that - From the unchallenged testimony of the plaintiff, it can be concluded that the use of trademark COLISPAS being adopted and used by the plaintiff for the last more than 23 years in relation of the medicines and pharmaceutical preparations by the defendants for their products is bound to cause confusion and deception in the mind of the customers. No justification has been shown by the defendants No.1 & 2 for the use of similar trademark of the plaintiff for its medicinal products which has distinctive character and composition. The plaintiff‟s ex-parte evidence has established bona fide use of the trademark COLISPAS by them since long. The defendants No.1 & 2‟s use of the identical trademark COLISPAS without their approval for medicinal products amounts to infringement of the plaintiff‟s trademark COLISPAS . The rival marks are deceptively similar and are likely to cause confusion in the mind of unwary purchasers. The purchasers are not expected to be well-versed with the chemical compositions of the medicinal preparations. Adverse inference is to be drawn against the defendants who opted not to contest the suit and offer any plausible justification for user of the mark COLISPAS . Considering the facts of the present case, on the basis of the evidence placed on record, it has been established that the defendants indulged in passing off the goods with the mark COLISPAS to the public at large without taking permission from the plaintiff. Since, they have chosen not to appear, it may not be of any use to pass a decree of rendition of accounts. The plaintiff will nevertheless be entitled to the damages in the light of the judicial dicta observed in Times Incorporated 2005 (1) TMI 630 - DELHI HIGH COURT .The defendant No.3 has already settled the dispute with the plaintiff. No compensation / damages were claimed from him at that time. In the light of above discussion, I am of the view that the plaintiff has proved its case against the defendants No.1 & 2 and is entitled for the decree prayed for. Accordingly, the suit is decreed with costs in favour of the plaintiff and the defendants No.1 & 2 and their representatives are restrained from manufacturing, selling, trading and marketing medicinal and pharmaceutical products under the trademark COLISPAS or any other identical / similar mark. The plaintiff shall also be entitled to damages to the tune of ₹ 1 lac. -Decided in favour of appellant/ plaintiff.

Summary

Issues:
- Infringement of trademark and passing off of goods
- Claim for permanent injunction and damages

Analysis:
The plaintiff, a well-known pharmaceutical company, filed a suit seeking a permanent injunction to restrain the defendants from infringing its trademark "COLISPAS" and passing off their goods as that of the plaintiff. The plaintiff claimed to be the rightful owner of the trademark "COLISPAS," which it had been using since 1986. The plaintiff provided evidence of its extensive and continuous use of the trademark, along with details of sales under the trademark. The plaintiff alleged that the defendants adopted an identical trademark for their medicinal preparations, causing confusion and deception among customers. An ex-parte restraint order was initially granted in favor of the plaintiff, and the defendants failed to contest the claim. The plaintiff's evidence remained unrebutted and unchallenged, establishing the bona fide use of the trademark "COLISPAS" by the plaintiff. The court found that the defendants' use of the identical trademark without approval amounted to infringement and was likely to cause confusion among purchasers.

The court also considered the issue of damages due to the infringement of the plaintiff's trademark and loss of sales and reputation. Citing previous cases, the court highlighted the importance of granting punitive damages to deter wrongdoers from engaging in unlawful activities. Despite the defendants' absence and lack of contesting the suit, the court emphasized the need to award damages to compensate the plaintiff and discourage violations of intellectual property rights. In this case, since the defendants did not appear, the court found it unnecessary to pass a decree for rendition of accounts but awarded damages to the plaintiff based on established facts and legal precedents.

Ultimately, the court decreed in favor of the plaintiff, granting a permanent injunction against the defendants from using the trademark "COLISPAS" or any similar mark for medicinal and pharmaceutical products. The court also awarded damages amounting to Rs. 1 lakh to the plaintiff. The defendant No.3, who settled the dispute with the plaintiff, was not held liable for compensation or damages. The judgment underscored the importance of protecting intellectual property rights and deterring unauthorized use through legal remedies such as injunctions and punitive damages.