The Plaintiffs' use of the trademarks 'ELDER' and 'ELDER' logo was found to be infringing the registered trademark of the Company in liquidation. The Court held that the suit was a gross abuse of process of law and imposed a cost of Rs. 50,000 on the Plaintiffs.

Sanjeev Narula, J.

Cs (Comm) 1313/2018

The present suit was originally filed seeking decree for permanent injunction, infringement of Trademark, passing off, dilution, unfair competition, rendition of accounts of profits or damages, delivery up etc. The court issued summons in the suit on 21st December 2018, and granted an ex parte ad interim injunction against all the Defendants, inter alia restraining them from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in medicinal preparation with the mark 'ELDER', 'ELDER' logo, 'EVERVIT' or any other identical or deceptively similar to Plaintiff's registered trademark. This injunction is continuing till date.

2. All the Defendants after receiving summons entered appearance and objected to the maintainability of the suit for the action of infringement of trademark on the ground that Plaintiffs were not the registered proprietor of the trademark and also on the ground of mis-joinder of causes of action. Taking note on these objections, the Plaintiffs conceded on two aspects. Firstly, they gave up their claim of infringement of trade mark and confined the suit only to the action of passing off. Secondly, the suit was restricted against Defendant Nos. 1 and 5 with permission to file a separate suit against Defendant Nos. 2 to 4. The aforementioned prayer was accepted by the Court vide order dated 21st January 2018 and the suit was dismissed as withdrawn qua Defendant Nos. 2 to 4. With respect to Defendants 1 and 5, Plaintiff was permitted to amend the Plaint. Further, a notice was also issued to the Official Liquidator attached to the Bombay High Court in respect of the liquidation proceedings against Elder Pharmaceuticals Ltd.

(hereinafter "EPL").

3. Plaintiff amended the suit and deleted averments made in the suit vis- -vis the claim of infringement of registered trademark including the prayer made in respect thereof. The amended prayer reads as under:

"30. In the aforesaid premises, and in the interest of justice, the Plaintiffs most respectfully pray that this Hon'ble Court may be graciously pleased to grant the following reliefs:

(b). a decree for permanent injunction restraining the Defendant, its partners or proprietor as the case may be, its assignee in business, franchisees, licensee, distributors and agents from manufacturing, selling, offering for sale, directly or indirectly dealing in pharmaceuticals goods or any medicinal product under the trade mark ELDER/ELDER logo (s) or EVERVIT or any other trade mark/logo(s) as may be identical to or deceptively similar with the Plaintiff trade mark ELDER/ELDER logo (s) or ELDERVIT amounting to or abetting acts of passing off or unfair competition;

(c). a decree directing the Defendant to deliver up all the infringing and impugned packagings, printed material of infringing packagings, medicinal products bearing the impugned mark of ELDER or EVERVIT, packaging, invoices, brochures and equipments used in printing the infringing packagings, printing cylinders, their blocks, negatives or dyes, as the case may be, to an authorized representative of the Plaintiffs for destruction and also provide the details of the persons involved in printing the infringing packaging/material and the details of their partners or proprietor as the case may be, their dealers, representatives and those acting in concert with them and by whom they are being printed, sold or supplied;

(d). an order for rendition of accounts of profit illegally earned by the Defendants and a decree for an amount so found due or in the alternative, a decree for Rupees Two Crore towards token damages may be passed in favour of the Plaintiffs and against the Defendants;

(e). award exemplary costs of the present proceedings in favour of the Plaintiffs and against the Defendants; "

4. Thereafter, Plaintiffs filed suit CS(COMM) 59/2019 against Defendant Nos. 2 to 4. In the said suit, this Court examined the Managing Director of Plaintiff No.1