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IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. ANAND VEKATESH, J.
M/s. Apex Laboratories Pvt. Ltd., Chennai - Appellant
Versus
Axis Life sciences, Hyderabad - Respondent
Civil Suit No. 254 of 2020
Decided On : 03-01-2022
Civil Procedure Code, 1908 - Order VII Rule 1 - O. S. Rules - Order IV Rule 1 - Trademarks Act, 1999 - Sections 27, 28, 29, 134 and 135 - Copyrights Act, 1957 - Sections 51, 55 and 62 – Suit for permanent injunction – Manufacture of pharmaceutical products - Infringement or passing off – Trade mark and Copy Right - Whether defendant, by using mark ZENKO-VIT/ ’ has infringed plaintiff’s registered trademark “ZINCOVIT” and their copyright for artistic work in adoption of their trademark ZINCOVIT/ and whether same is phonetically, visually and structurally identical to registered trademark of plaintiff and as to whether plaintiff is entitled for reliefs sought for in this suit – Held, The defendant’s mark is phonetically, visually and structurally identical to plaintiff’s trade mark and it is bound to cause confusion as both products will be made available through same trade channels and to same class of consumers. The above discussion leads to conclusion that mark ZENKO-VIT/ used by defendant has infringed plaintiff’s trade mark ZINCOVIT and copyright - The mark “ZENKO-VIT” used by defendant has infringed plaintiff’s trade mark “ZINCOVIT” and copyright. That apart, same is phonetically, visually and structurally identical to trade mark of plaintiff. Accordingly, plaintiff is entitled for reliefs sought for in this suit except the relief of rendition of accounts which stands rejected considering facts and circumstances of case – Civil suit is allowed.
JUDGMENT :
Prayer: Civil Suit has been filed under Order VII Rule 1 of CPC and Order IV Rule 1 O.S.Rules r/w Sections 27, 28, 29, 134 and 135 of the Trademarks Act, 1999 and Sections 51, 55 and 62 of the Copyrights Act, 1957, pleased to grant a judgment and decree on the following terms:-
(b) a permanent injunction restraining the defendant, 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 a substantial reproduction of plaintiffs' registered copyright under Nos.A-112789/2017 and other registered copyrights in colour scheme, get up and layout for their ZENKO-VIT for any tablets, syrup, drops etc., or in any other manner whatsoever;
(c) a permanent injunction restraining the defendant, 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 Defendant' products under the trademark ZENKO-VIT 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 plaintiff's ZINCOVIT trademark or artistic work or in any other manner whatsoever;
(d) the defendant 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 ZENKO-VIT label or any mark deceptively similar to plaintiffs' trademark and artistic work ZINCVIT label.
(e) a preliminary decree be passed in favour of the Plaintiff's directing the defendant to render account of profits made by use of trademark and copyright in the artistic work ZENKO-VIT label and a final decree b passed in favour of the plaintiff's for the amount of profits thus found to have been made by the defendant after the latter have rendered accounts;
(f) for costs of the suit; and
(g) pass such further or others reliefs as this Hon'ble Court may deem fit and necessary in the circumstances of the case and thereby render justice.
1. The instant suit has been filed seeking for a permanent injunction, restraining the defendant, by itself, its partners, men, servants, agents, distributors, stockiest, representatives or anyone claiming through or under them from in any manner infringing or passing off the plaintiff’s registered trademark “ZINCOVIT” under No. 487453 in Class 5, other registered trademarks by using a deceptively similar trademark “ZENKO-VIT”/ or any other trademark deceptively similar to the plaintiff’s registered trademark, in any manner committing acts of copyright infringement by using, in the course of trade, labels/artistic works which are a substantial reproduction of Plaintiffs’ registered copyright under Nos. A-112789/2017/ and other registered copyrights in colour scheme, get up and layout for their ZENKO-VIT/, for any tablets, syrup, drops, etc, in any other manner whatsoever. The plaintiff has further prayed for a direction to the Defendant to surrender all the materials bearing the infringing trade mark. The Plaintiff has also sought for a direction to the Defendants for rendition of accounts.
Case of the Plaintiff:
2. The case of the
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