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TMI Blog2015 (3) TMI 325X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff 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 us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The plaintiff has instituted the present suit for permanent injunction to restrain the defendants from infringing the trademark and passing off their goods as that of defendants. Briefly the facts pleaded in the plaint are : 2. The plaintiff company - Bestochem Formulations (I) Ltd. is a company duly incorporated and registered under the Companies Act. It is a well known organization in the field of manufacturing, sale and distribution of pharmaceuticals and medicines since 18.09.1985. It enjoys a very high reputation for its products because of excellent quality and efficiency. Its total turnover runs into crores of rupees. The plaintiff is proprietor of more than 150 brands in its portfolio. It operates all over India in various State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the trademark in its name claiming the use since 1986 and it is pending for disposal before the Registrar of Trademarks. Being a prior adopter, regular and extensive user for more than 23 years, the plaintiff has acquired enviable goodwill, reputation and common law rights over the trademark COLISPAS . 4. Further case of the plaintiff is that on 05.02.2009, it wrote a letter to the office of the Drug Licensing Controlling Authority, Uttrakhand and apprised them about the illegal use of the trademark COLISPAS by defendants No.1 2. However, no action was initiated. On 27.04.2009, the plaintiff issued a cease and desist notice to defendant No.2. On 15.05.2009, the defendants through their attorney replied it and demanded certain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 8 affidavit (Ex.PW1/A). He also proved various documents Ex.PW-1/1 to Ex.PW-1/8 in support of his case. 7. I have heard the learned counsel for the plaintiff and have examined the file. The evidence filed by the plaintiff has gone unrebutted and unchallenged. The contents of the plaint have been proved by PW-1 (Mr.Vijay Prakash) and there are no valid reasons to disbelieve the statement. 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 ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. In Microsoft Corporation vs. Deepak Raval‟, MIPR 2007 (1) 72, this Court observed that in our country the Courts are becoming sensitive to the growing menace of piracy and have started granting punitive damages even in cases where due to absence of defendant, the exact figures of sale made by them under the infringing copyright and / or trademark, exact damages are not available. The justification given by the Court for award of compulsory damages was to make up for the loss suffered by the plaintiff and deter a wrong doer and like-minded from indulging in such unlawful activities. 11. In Larsen and Toubro Limited vs. Chagan Bhai Patel‟, MIPR 2009 (1) 194, this Court has observed that it would be encouraging the vio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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