@JUDGMENTTAG-ORDER
S.J. Kathawalla, J.@mdashThe learned Advocate for the Plaintiff undertakes to file Vakalatnama within a period of one week from today.
This is an action for infringement of trademark and passing off committed by Defendant by using identical and/or similar mark in, relation to pharmaceutical products or medicinal preparations or similar goods. The Plaintiff is a company incorporated under the Companies Act, 1956. The Plaintiff is the registered proprietor of the trademarks "L-CIN 250" and "L-CIN 500" at Exhibits A1 and A2 to the Plaint, in respect of medicinal and pharmaceutical preparations and substances included in class 5 of the Fourth Schedule of the Trade Marks Rules, 2002 to the Trade Marks Act, 1999. Therefore according to the Plaintiff, the Plaintiff is the true and rightful owner of the suit trade mark.
The Defendant No. 1 is a firm and/or proprietary concern and carries on business of manufacture, sale and distribution of pharmaceutical products and is the manufacturer of the impugned mark "ELCIN-OZ", which mark is identical with and/or deceptively similar to the Plaintiff''s registered trademarks "L-CIN 250" and "L-CIN 500" and identical to the mark "L-CIN OZ".
2. The Plaintiff in person has led the evidence by filing his Affidavit in lieu of examination-in-chief. He confirms the correctness of the contents of the Affidavit. The Affidavit, inter alia, reiterated what is stated in the Plaint. Through the evidence, the compilation of documents is tendered in the Court which is taken on record.
3. Plaintiff has been using the products bearing the registered trademarks "L-CIN 250" and "L-CIN 500" since the year 2002 openly, continuously and extensively and the brand/line extensions subsequently throughout India. Plaintiff is the registered proprietor of the trademarks "L-CIN 250" and "L-CIN 500" by virtue of its registration which is annexed and marked as Exhibits - Al and A2 to the Plaint and the copies of the same annexed to the Schedule of the Affidavit which is tendered along with the affidavit of Mr. R. Kumar, Deputy General Manager-Legal of the Plaintiff herein.
4. Mr. Vinay Parelkar, learned advocate appearing for the Plaintiff states that that the said registered trademark was used openly, continuously and extensively by the Plaintiff since the year 2002 and the same has become distinctive with the products of the Plaintiff. I am satisfied with the contentions as the affidavit along with compilation of original documents tendered by the Plaintiff, which sufficiently proves extensive and prior use of the Plaintiff''s said registered trademarks "L-CIN 250" and "L-CIN 500" since the year 2002.
5. The Plaintiff has been selling the said products bearing the said registered trademarks "L-CIN 250" and "L-CIN 500"and line extensions continuously, extensively and exclusively on a growing scale which is evident that the sales of the Plaintiff''s which rose from 568.67 lakhs in the year June 2002 - March 2003 to 2775.31 lakhs in the year April 2009 - January 2010. The same has acquired great reputation and goodwill which deserves to be protected.
6. Having come to know that the Defendant commenced manufacturing and marketing/selling products bearing the mark similar to that of the Plaintiff''s trademark, the present suit was filed for infringement of trademark and passing off. The impugned mark is nearly identical and/or deceptively similar to the Plaintiff''s prior used "L-CIN 250" and "L-CIN 500" trademarks and identical with the "L-CIN OZ" trademark of the Plaintiff.
7. There is nothing on record that militates against anything that has been averred in the Plaint and deposed by the Plaintiff/witness.
8. After going through the compilation of the original documents, Plaint and hearing the submissions of learned Advocate for the Plaintiff, I find that the Defendant has copied the essential features of Plaintiff''s trademarks "L-CIN 250" and "L-CIN 500". Defendant''s (sic) deceptively similar to Plaintiff''s trade-marks and by use of the impugned mark Defendant are passing off its products as that of Plaintiff''s products.
9. The Defendant No. 1 has remained absent despite service of writ of summons by the Plaintiff. The evidence of the witness is uncontroverted.
10. In the circumstances, suit is decreed in terms of Prayer Clauses (a), (b) and (c). Costs to be quantified as per rules.
11. Considering the nature of infringement and with a view to dissuade others from indulging into such activities, it is imperative that some punitive damages are awarded to the Plaintiffs. I, therefore award punitive damages amounting to Rs. 50,000/- to the Plaintiff and against Defendant. The office shall return the original documents to the Advocate for the Plaintiffs upon the Advocate for the Plaintiffs handing over Photostat copies of the said documents duly certified by him as true copies.
