Plaintiff entitled to a permanent injunction against the Defendants for trademark infringement and passing off due to the similarity in marks and packaging.

Headnote:(A) Intellectual Property Laws - Trade Marks Act - Sections relating to passing off and registered trademarks - Plaintiff seeks permanent injunction against Defendants for using similar mark 'Blofin-D3 Max' which infringes on the Plaintiff's registered marks 'Bio-D3', 'Bio-D3 Max', etc. (Paras 2, 6, 9)

(B) Trademark Infringement - Court concludes that the trade dress, colour combination, mark, and layout of the products are identical, leading to a likelihood of confusion among consumers. (Para 6)

(C) Injunction - Permanent injunction granted against all defendants due to infringement and passing off, along with litigation costs awarded against Defendant No. 1 and Defendant No. 2. (Paras 10, 11, 12)

Facts of the case:
The Plaintiff registered its trademarks in 1998 and 2009, claiming the Defendants used similar packaging and marks for identical pharmaceutical products. An interim order had previously restrained the Defendants, and an undertaking was provided to change the infringing mark.

Findings of Court:
Permanent injunction granted, litigation costs of Rs. 2 lakhs against Defendant No. 1 and Rs. 1 lakh against Defendant No. 2 were imposed, payable within eight weeks.

Issues: The primary issues were whether the Defendants’ marks were infringing and the validity of the Plaintiff's claims of passing off.

Ratio Decidendi: The court determined the identity of products and trade dress frustrated consumer distinction, justifying the injunction.

Result: Suit decreed in favor of the Plaintiff.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done through hybrid mode.

2. The present suit has been filed by the Plaintiff seeking permanent injunction restraining the Defendants from use of the mark `Blofin-D3 Max' along with the trade dress and packaging, stated to be identical to the Plaintiff's trademark `Bio-D3', `Bio-D3 Max' `Bio-D3 Fem'/trade dress/layout/packaging/copyright/etc., as also for reliefs for passing off, unfair competition, misrepresentation, dilution, damages, rendition of accounts, etc. The said marks are used by the Plaintiff for multivitamin and calcium pharmaceutical preparations. The Plaintiff is the registered proprietor of the said marks which have been in existence since 1998, with `BIO D3 MAX' being registered in 2009. The Plaintiff has also adopted a unique colour combination and design incorporating vaarious distinguishing features on the trade dress, such as a pictorial representation of a spinal cord and a leaf, combined together in the form of a butterfly. The annual turnover of the Plaintiff is stated to be around Rs.160 crores each, in 2019-20 and 2020-21.

3. The case of the Plaintiff is that the Defendants are using the mark `Blofin-D3 Max' in similar packaging for identical pharmaceutical preparations consisting of the same active ingredient: `Calcitriol, Omega-3 Fatty Acids, Eicosapentaenoic Acid, Docosahexaenoic Acid, Methylcobalamin, Boron & Calcium Carbonate.' The Plaintiff has filed the present suit seeking permanent injunction and damages. Vide order passed on 22nd September, 2021, the Court came to the conclusion that the Defendants' mark and trade dress are similar to the Plaintiff's however, the Plaintiff's prior user of the said mark ought to be established. Accordingly, notice was issued. Thereafter, an interim order was passed on 10th November, 2021, as clarified by order dated 24th November, 2021, where the Defendants had given an undertaking and the said undertaking was recorded by the Court in the following terms:

"1. Ms. Sahadev, learned Counsel for the plaintiff, submits that her client is satisfied with the proposal, in the affidavit dated 2nd November, 2021, filed by Defendant No. 1, in which Defendant No. 1 has undertaken not to continue to use the alleged infringing marks and representations and to change its trademarks as proposed in Para 3 thereof, which reads thus:

3. That Defendant No. 1 has proposed to change the name of its trade mark "Blofin-D3 Max" to "Blofin-Plus" in a completely different style, design and getup from that of Plaintiff the same is as under:

2. In view thereof, she submits that the present application may be disposed of with a direction to the respondent to abide by its undertaking in Para 3 of the affidavit and by restraining the defendant from using the marks impugned in the plaint.

3. Accordingly, lA 12337/2021, is disposed of by binding down Defendant 1, to the undertaking and assurance contained in Para 3 of its affidavit dated 2nd November, 2021, as reproduced hereinabove. Defendant No. 1 shall stand restrained, during the pendency of the suit, from using the marks impugned in the suit and alleged by the Plaintiff, from infringing the plaintiffs' registered trademarks.

4. Defendant 2 has filed an affidavit, asserting that it has nothing to do with the use of the alleged infringing mark by Defendant No. 1 and that, in fact, Defendant No. 1 is using the name of Defendant 2 on its product without due authority.

5. He submits that in this regard. Defendant 2 is already before this Court, against Defendant No. 1 in CS (COMM) 531/2021, in which this Court has protected Defendant No. 2 against use, by Defendant No. 1, of its name and mark. As such, he submits that, his client is not a necessary party in these proceedings, and that, therefore, no order of injunction should operate against his client. He further submits that, for this purpose, the affidavit filed by his client may be treated as an application for