2015 Supreme(Mad) 1772

IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, J.
Sri Vari Pharma – Appellant
Versus
Apex Laboratories Pvt. Ltd., & Others – Respondent
Application Nos. 3307 & 3308 of 2014 in C.S. No. 8 of 2014
Decided On : 20-04-2015

Headnote:

Companies Act – Trademarks Act – Sections 27, 28, 29, 134, 135 – Civil Procedure Code, 1908 – Order 7 Rule 11, Order XIV Rule 8, Order I Rule 10 – Trademark – Similar Sounding – Plaintiff has filed the suit for the reliefs a permanent injunction restraining the defendants, by itself, its partners, men, servants, agents, distributors, stockiest, representatives or any one claiming through or under them from in any manner infringing the plaintiffs registered trademark ZINCOVIT under No.487453 in class 5 by using a deceptively similar trademark ZINKOWIT or any other trademark deceptively similar to the plaintiffs registered trademark or in any other manner whatsoever – Permanent injunction restraining the defendants, by itself, its partners, men, servants, agents, distributions, stockiest, representatives or any one claiming through or under them from in any manner committing acts of copyright infringement by using, in the course of trade, labels/artistic works which are substantial reproductions of plaintiffs registered copyright under No.A-54243/1997 in colour scheme, get up and layout for their ZINKOWIT syrup, drops tablets etc., or in any other manner whatsoever – Permanent injunction restraining the defendants, by itself, its partners, men servants, agents, distributors, stockiest, representatives or any one claiming through or under them from in any manner committing acts of copyright infringement by using, in the course of trade, labels/artistic works which are substantial reproductions of plaintiffs registered copyright under No.A-91339/2011 for their ZINKOWIT syrups, drops, etc., or in any other manner whatsoever; –Permanent injunction restraining the defendants, by itself, its partners, men servants, agents, distributors, stockiest, representatives or any one claiming through or under them from in any manner passing off and/or enabling others to pass off the defendants products under the trademark ZINKOWIT as and for the plaintiffs products by manufacturing, selling or offering to sell, distributing, displaying, printing, stocking, using, advertising their products with a trademark and/or label or artistic work that is identical in colour scheme, get up and layout with that of the plaintiffs ZINCOVIT trademark or artistic work or in any other manner whatsoever – Defendants be ordered to surrender to plaintiffs for destruction of all products, labels, cartons, dyes, blocks, moulds, screen prints, packing materials and other materials bearing the trademark ZINKOWIT label or any mark deceptively similar to plaintiffs trademark and artistic work ZINCOVIT label. – Preliminary decree be passed in favour of the plaintiffs directing the defendants to render account of profits made by use of trademark and copyright in the artistic work ZINKOWIT label and a final decree be passed in favour of the plaintiffs for the amount of profits thus found to have been made by the defendants after the latter have rendered accounts – Held, It could be seen that the plaint can be rejected only when it does not disclose any cause of action and the said power could be used only when the Court is of the view that absolutely the plaintiff has no arguable case at all. – But, in the instant case, Court find that the plaintiff is having an arguable case with regard to the submissions made by the learned counsel for the 3rd defendant. – It is yet another contention of the learned counsel for the 3rd defendant that in the plaint, a reference was made by the petitioner with regard to the 3rd defendant stating that the 3rd defendant is the distributor of the 1st defendant in Tamil Nadu and the 3rd defendant had sold the product, which was found with ants. – But, it is the contention of the learned counsel for the 3rd defendant that on the date of filing the suit, the said product was not in possession of the 3rd defendant. – Hence, according to the learned counsel for the 3rd defendant, the suit is not maintainable as against the 3rd defendant. – Submission of the learned counsel for the 3rd defendant will not be helpful in any way either to reject the plaint as against the 3rd defendant or to strike out the name of the 3rd defendant from the plaint. – In fact, the said submission of the learned counsel for the 3rd defendant would go to show that originally the 3rd defendant was selling the said product. – Therefore, under Section 29 of the Trade Marks Act, the suit is very well maintainable as against this defendant also. – Therefore, the plaint cannot be rejected at the threshold, by accepting the submissions made by the learned counsel for the 3rd defendant. If the plaint is rejected, it would end in failure of justice. – Similarly, the name of the 3rd defendant also cannot be struck out at this stage. – Court is not inclined to accept the submissions made by the learned counsel for the 3rd defendant. – Court find that the 3rd defendant/applicant has not made out any ground within the ambit of Order 7 Rule 11 of CPC. – Applications Dismissed