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2020 Supreme(Del) 1361
IN THE HIGH COURT OF DELHI AT NEW DELHI
V. Kameswar Rao, J.
Bharat Biotech International Ltd. - Appellant
Versus
Optival Health Solutions Pvt. Ltd.. & Anr. - Respondent
Civil Suit (Comm) No. 1248 of 2018; Interlocutory Application No. 16073 of 2018, 16074 of 2018, 1997 of 2019
Decided On : 26-05-2020
Sudhir Chandra, Advocate, Sughosh S N, Advocate, Vipin Nair, Advocate, P.B. Suresh, Advocate, Karthik Jayashankar, Advocate, Pracheta Kaur, Advocate, Yogesh Raavi, Advocate, Snigdha Singh, Advocate, Anil Sapra, Advocate, Anusuya Nigam, Advocate, Vrinda Pathak, Advocate
Headnote:(A) Trade Marks Act, 1999 - Plaintiff seeks interim injunction against alleged trademark infringement and passing off concerning 'TCV' and 'Typbar-TCV'. Both marks are registered and derived from developed vaccines. Plaintiff has been recognized for their product and claims violation by defendant's use of 'ZYVAC-TCV'. The court evaluates the descriptiveness of 'TCV' and found it to be generic, not acquired distinctiveness, leading to rejection of plaintiff's claim for interim injunction. (Paras 42, 45, 70)
(B) Trademark Infringement - The likelihood of confusion is evaluated under the standard of distinctiveness and originality of marks. The court finds that 'ZYVAC-TCV' does not infringe as there is no deceptive similarity to 'TYPBAR-TCV'. (Paras 49, 56)
(C) Generic Terms - The court rules that the term 'TCV' is a generic abbreviation and thus incapable of exclusive trade mark protection. Registration is found prima facie invalid. (Paras 42, 43)
JUDGMENT
V. Kameswar Rao, J. - I.A. 16073/2018
1. By this order I shall decide this application filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of CPC seeking interim injunction against the defendants.
2. The suit has been filed by the plaintiff for permanent injunction against the defendants seeking restraint order from infringing its trade marks, passing off, rendition of accounts / damages and delivery up etc.
3. It is the case of the plaintiff that it is one of the leading manufacturer of the specialized vaccines and bio-therapeutics in India with significant presence both in India and abroad. It has a history of creating innovative vaccines. The manufacturing facilities of the plaintiff are approved by the regulatory agencies in India and abroad and are also approved by the World Health Organization. The plaintiff has honestly coined the trade mark ''TCV'' and ''Typbar-TCV'' in the year 2012 in relation to a revolutionary vaccine product for Typhoid treatment, then under development by the plaintiff. Both of the said trade marks are registered in India under TRADE MARKS ACT , 1999 ('' TRADE MARKS ACT '', in short) and have been in continuous and uninterrupted use since May, 2012. The details of the registration of the trade marks are as under:
| a) | Trademark | : | TCV |
|
| Registration No. | : | 2291745 |
|
| Valid upto | : | 28.02.2022 |
|
| Class | : | 5 |
|
| Goods | : | Vaccine formulations, |
| b) | Trademark | : | Typbar-TCV |
|
| Registration No. | : | 2291743 |
|
| Valid upto | : | 28.02.2022 |
|
| Class | : | 5 |
|
| Goods | : | Vaccine formulations |
It is averred that both the registrations are valid and subsisting.
4. The plaintiff''s trade mark ''TCV'' is registered in Saudi Arabia and Jordan and is expected for registration in Nigeria. Similarly, the plaintiff''s trade mark ''Typbar-TCV has been registered in Saudi Arabia and Jordan and has been accepted for registration in Vietnam and Nigeria. The vaccine of the plaintiff has been widely sold throughout in India since 2013-2014 and is recognized as a premier product for treatment of Typhoid. As per the plaintiff, the revenue in 2017-2018 alone was INR 108.82 Crores. The plaintiff is actively and diligently monitoring any misuse of its aforesaid trade marks. To quote an example, it is averred that the plaintiff on coming to know of the filing of trade mark application bearing no. 2091888 for ''SCION TCV'' by a third party, immediately initiated an opposition proceedings before the Trade Mark Registry on July 20, 2018.
5. It is the case of the plaintiff, based on the information received, the defendant No.1 is a corporate entity with offices pan- India including Delhi, and appears to be in the business of hosting and operating an interactive website www.medplusmart.com, where pharmaceutical products are actively offered for sale across India including the products bearing the infringing trade marks. The plaintiff is not aware of the exact composition of the defendant No.1 which will become known only after discovery in the present proceedings.
6. It is averred that in the second week of October, 2018, the plaintiff learnt through market sources including its distributors that defendant No.2 had actively commenced promoting a competing vaccine product for Typhoid infection which was similar if not identical in composition to the plaintiff''s conjugated vaccine product. Plaintiff immediately undertook market surveillance and proceeded to cause searches to be made through the internet as well, to determine the authenticity of such information and to determine if any violation of its intellectual property rights was involved. During such enquiry, a website was located which claimed to offer a Typhoid vaccine named ''ZYVAC-TCV'' purport
