JUDGMENT :

N. ANAND VENKATESH, J.

Prayer: Civil Suit has been filed under Order IV, Rule 1 O.S. Rules and Order VII, Rule 1 of the C.P.C. Read with Section 27, 134 and 135 of the Trade Marks Act, 1999, praying to pass a judgment and decree for: (a) granting a permanent injunction, restraining the defendant, by themselves, their servants, agents, men, or anyone claiming through them from manufacturing, marketing, distributing, offering or advertising for sale any pharmaceutical preparation using the Trade Mark ATORLITE or any other name which is in any way phonetically or deceptively similar to the Plaintiffs Trade marks ATOR and ATORVA and pass off their pharmaceutical preparation as the pharmaceutical preparation of the Plaintiffs or enable others to pass off in any manner. (b) direct and decree the Defendant to deliver to the Plaintiff all the goods, dies, labels wrappers, packages, cartons, boxes, articles, literature and all other materials bearing reference whatsoever with respect to the offending trademark ATORLITE for destruction without compensation. (c) The Defendant be ordered and directed to render true and faithful accounts of the profits legally earned by the Defendant by using the deceptively similar and confusing trade name ATORLITE and a decree for the said amount be passed in favour of the Plaintiff against the Defendant. (d) directing the Defendant to pay to the Plaintiff's the costs of the suit.

1. The instant suit has been filed seeking for the relief of permanent injunction restraining the defendant, her servants, agents or anyone claiming through the defendant, from manufacturing, marketing, distributing, offering, advertising for sale of any pharmaceutical preparation using the trade mark ATORLITE, which is deceptively similar to the plaintiff’s trade marks ATOR and ATORVA and for other consequential reliefs.

2. The case of the plaintiff is that they are one of the leading pharmaceutical companies manufacturing and marketing pharmaceuticals and nutraceuticals products. The further case of the plaintiff is that they coined and adopted distinctive trade marks ATOR and ATORVA, under which the plaintiff manufactures and markets medicinal preparations. The plaintiff applied for registration of the trade marks ATOR and ATORVA and obtained the trade mark registration. It is further stated that the plaintiff is using this trade mark since 1999 continuously and the plaintiff has also given the sales figure of the mark for a period of 9 years from 2003-2004 to 2011-2012, in order to establish that they have made substantial sales by using this trade mark. The grievance of the plaintiff is that the defendant used a mark ATORLITE, which is deceptively similar to the trade mark of the plaintiff and thereby is causing confusion to the consumers and is dishonestly earning profits by misusing the goodwill and reputation of the plaintiff. Aggrieved by the same, the plaintiff has knocked the doors of this Court, seeking for various reliefs.

3. The defendant who entered appearance through their counsel, failed to file written statement in spite of several opportunities given to the defendant. This Court took into consideration the fact that the defendant did not file a written statement even after six years from the date of institution of this suit and consequently by an order dated 16.12.2019, forfeited the right of the defendant from filing the written statement. Hence, the defendant has not set up any defense on her side.

4. The only issue that arises for consideration in the present suit is that whether the defendant, by using the mark ATORLITE has infringed the plaintiff’s trade marks ATOR and ATORVA and whether the same is phonetically, visually and structurally identical to the trade mark of the plaintiff and as to whether the plaintiff is entitled for the reliefs sought for in this suit.

5. The manager of the plaintiff company was examined as PW-1 and he was also permitted to be cross-examined by the counsel appearing on