Important Point – Defendant has no justification for adoption and use of virtually identical trade mark as well as trade dress as that of plaintiff in relation to identical products.

MANMOHAN, J.

I.A. 8027/2017

1. Present application has been filed under Order VIII Rule 10 read with Order XIII-A Rules 3 and 6(1)(a) read with Section 151 CPC.

2. It is pertinent to mention that the present suit has been filed seeking a permanent injunction restraining infringement of trade mark, copyright, passing off etc. against the defendant. At the outset, learned counsel for plaintiff stated that he is pressing only prayers 27(a) to (c) of the plaint. The said prayers are reproduced hereinbelow :-

“27. It is, therefore, prayed that this Hon’ble Court may be pleased to grant :

(a) An order of permanent injunction restraining the Defendant, its proprietors, principal officers, servants, representatives, agents, affiliates, legal heirs, distributors and any other persons acting for and on its behalf from manufacturing, selling, distributing, exporting, advertising, promoting or otherwise dealing in pharmaceutical products, in any manner, under the impugned mark CATEVEL or any other mark similar to the Plaintiff trade mark CETAPHIL amounting to infringement of the Plaintiff’s registered trade mark No.859078.

(b) An order of permanent injunction restraining the Defendant, its proprietors, principal officers, servants, representatives, agents, affiliates, legal heirs, distributors and any other persons acting for and on its behalf from manufacturing, selling, distributing, exporting, advertising, promoting or otherwise dealing in pharmaceutical products, in any manner, bearing the impugned trade dress or any other trade dress which is a reproduction, whether substantial or otherwise, of the Plaintiff’s Cetaphil Trade Dress amounting to infringement of copyright.

(c) An order of permanent injunction restraining the Defendant its proprietors, principal officers, servants, representatives, agents, affiliates, legal heirs, distributors and any other persons acting for and on its behalf from manufacturing, selling, distributing, exporting, advertising, promoting or otherwise dealing in pharmaceutical products, in any manner, under the impugned mark CETAVEL and/or any other mark similar to the Plaintiff’s trade mark CETAPHIL and also from using any trade dress which is a reproduction of the Cetaphil Trade Dress or doing any other act amounting to passing off the Defendant’s products and/or business as that of the Plaintiff.”

3. The defendant was served with summons in the suit on 15th February, 2017 and was therefore statutorily required to file its written statement by 17th March, 2017 or latest by 15th June, 2017. The defendant was proceeded against ex-parte on 20th April, 2017. On the said date, the Court also granted an interim injunction in the plaintiff’s favour and restrained the defendant from using the impugned trade mark/name CETAVEL during the pendency of the proceedings. Till date, the defendant has neither entered appearance nor filed its written statement.

4. The contentions and submissions advanced by learned counsel for the plaintiff are as under:-

i. The plaintiff is the proprietor of the trade mark CETAPHIL which was adopted in 1950 and used in relation to a therapeutic skin care product range.

ii. The plaintiff’s trade mark CATEPHIL is a coined/invented mark and is entitled to the highest degree of protection conferred under law.

iii. In addition to over 65 years of use internationally, the CETAPHIL trade mark has been continuously and extensively used in India since January 2001 when the Plaintiff launched its CETAPHIL range of products in the Indian market.

iv. The CETAPHIL trade mark is registered in the plaintiff’s favour in India under No. 859078 in Class 3 in relation to perfumery products, soaps, cosmetics, non-medicated preparations for the skin; creams and skin lotions, all for use in the cleansing of sensitive skin, all included in Class 3. The plaintiff has obtained registrations for the trade mark