The judgment established the infringement of a registered trademark, the deceptive similarity of rival marks, and the principles of comparison of marks, likelihood of confusion and deception, and the law of publici juris.

Manmohan Singh, J.

1. The present suit has been filed by the plaintiffs for permanent injunction restraining infringement of trademark, passing off, rendition of accounts of profits/damages, delivery etc. against the defendant. By this order, I propose to decide two pending applications i.e. I.A. No. 1871/2013 (Order 39 Rule 1 and 2 CPC) and I.A.No.2706/2014 (Order 39 Rule 2A CPC).

Case of the plaintiffs

2. Plaintiff No.1 is engaged in the business of pharmaceutical products since past several decades. Plaintiff No.2 has been manufacturing and selling various pharmaceutical products, one of them being under the trade mark DROTIN. Plaintiff No.3 is engaged inter alia in buying and selling the pharmaceutical goods manufactured by plaintiff No.2 including DROTIN. The plaintiffs are the leading pharmaceuticals companies in India.

3. Plaintiff No.2 manufactures drugs under the trade mark DROTIN for and on behalf of the plaintiff No.1 under a non-exclusive license. Plaintiff No.2 adheres to all strict quality standards stipulated and monitored by the plaintiff No.1. The products of the plaintiffs under the trade mark DROTIN were first introduced in the Indian markets in the year 1997. The DROTIN tablets manufactured by the plaintiff No.2 are marketed by the plaintiff No.1 in India. Plaintiff No.3, Martin and Harris Pvt. Ltd, who are in the business of pharmaceutical products since 1924 are inter alia manufacturing injections under the trade mark DROTIN under license from the plaintiff no.1 and are in the business of buying and selling pharmaceutical goods manufactured by plaintiff No.2 which are marketed by the plaintiff No.1 in India.

4. It is alleged in the plaint that the Plaintiff No.1 has bonafidely coined and adopted the trade mark DROTIN and has used exclusively, continuously and extensively since 1997 in relation to tablets and injections. DROTIN tablet and injections manufactured and marketed by the plaintiffs is a schedule ‘H’ drug which are to be sold on the prescription of a registered medical practioner. The plaintiff No.1 registered its trade mark DROTIN in India under registration number 732349 in Class 5 as on 3rd February, 1997 for medicinal and pharmaceutical preparations which is more than 14 years old and has become conclusive. Therefore, the said registration is valid and subsisting in accordance with law. Plaintiff No.2 obtained drug license for the manufacture of pharmaceutical product under the trade mark DROTIN on 2nd April, 1997.

5. It is alleged by the plaintiffs that in view of registered old trade mark granted in favour of the plaintiff No.1, the trade mark DROTIN having statutory and exclusive right to the use thereof in relation to medicinal and pharmaceutical preparations under Section 28 (1) of the Trade Marks Act, 1999 ( hereinafter referred to as the ‘Act’) and the use of any identical or deceptively similar mark by any other person in relation to similar goods, without permission, consent or license from the plaintiffs amounts to infringement of the plaintiffs registered trade mark under Section 29 of the Act.

6. The plaintiff No.1 has given the details about their products which were launched under the trademark DROTIN:-

a) DROTIN and DROTIN-DS tablets in June 1997 and January 1998 respectively recommended in cases of abdominal pain associated with irritable bowel syndrome (IBS). DROTIN injections were launched in November 1998 for acute abdominal pain and are used to hasten dilations, shortens labour and lessens cervical trauma.

(b) DROTIN-M was introduced in April 2000 and is recommended in cases of spasm associated with inflammation.

(c) DROTIN PLUS was introduced in July 2004 and is recommended in cases of abdominal pain associated with varied etiology and in fever.

(d) DROTIN A was introduced in October 2009 and is recommended in cases of abdominal pain/colic, pelvic inflammatory disease, post-surgical spasm associated with pain, primary dysmenorrheal and abdominal pain associat