JUDGMENT
Badar Durrez Ahmed, J.
1. By an order dated 23.03.2005 this court had directed issuance of summons to the defendants. By order dated 08.07.2005, the defendants 1 and 2, not having appeared despite service of summons, were ordered to be proceeded with ex parte. By order dated 08.08.2005, the defendant No.3 also being absent despite service was directed to be proceeded with ex parte. In this manner, all the defendants 1 to 3 have been proceeded with ex parte. The plaintiff was directed to file his evidence through his affidavit and also to file his documents within four weeks. The plaintiff did so.
2. The plaintiff No.1 is a company organized and existing under the laws of U.K. and the plaintiff No.2 is incorporated under the Indian Companies Act, 1956. The plaintiff No.2 is a hundred percent subsidiary company of the plaintiff No.1. The plaintiffs are well-known manufacturers of pharmaceutical products. The plaintiffs have proprietory rights in respect of the manufacture and sale of, inter alia, ‘CROCIN’ and ‘CROCIN PAIN RELIEF’ in the distinctive blue and red strip packagings respectively. The sale figures of ‘CROCIN’ and ‘CROCIN PAIN RELIEF’ during the last two years are as under:-
In Rs. Crore
2002 (Aug-Dec) 2003 2004
CROCIN 500 10 31.2 36.6
CROCIN PAIN RELIEF 2.6 5.4
3. It is also stated in the affidavit that the trade mark of ‘CROCIN’ is an invented word having no dictionary meaning and thus having the highest degree of distinctiveness. It was first used in India by a company named Duphar-Interfran Ltd in the year 1963 and the same was acquired by the plaintiff No.1 in 1996 and thereafter it has been recorded as the proprietor of the mark CROCIN. It is further stated in the affidavit that in the month of January 2005, the plaintiffs were alerted to the sale of paracetamol tablets under the mark ‘NELCIN PLUS’ bearing a packaging almost identical to the plaintiff’s ‘CROCIN PAIN RELIEF’, i.e., packaging in red. The plaintiffs made inquiries and it was revealed that these paracetamol tablets bearing mark ‘NELCIN PLUS’ were being manufactured by the defendant No.1, who is the proprietor of Anros Pharma. The inquiries further indicated that the defendants 2 & 3 were providing technical assistance to the defendant No.1 for manufacturing NELCIN line of products. The specimen of the plaintiffs products have been exhibited as Exhibit P-3 and P-4 and those of the defendants have been exhibited as Exhibit P-5 and P-6. NELCIN PLUS which is shown in Exhibit P-5 is said to infringe the copyright of the plaintiff insofar as ‘CROCIN PAIN RELIEF’ shown in Exhibit P-4 and similarly Exhibit P-5 is said to offend Exhibit P-3. It is further stated that not only the defendants have copied the product packaging of CROCIN 500 and CROCIN PAIN RELIEF, but they have also adopted the NELCIN mark which is distinctively similar to the well-known product of ‘CROCIN’ and, according to the learned counsel for the plaintiff, such an adoption and use of mark ‘NELCIN’ would amount to copyright violation and passing off of their goods and infringement of trade mark. It is also submitted by the learned counsel for the plaintiff that a clear comparison of the plaintiffs products with those of the defendants in the said exhibits indicate that in the minds of common customers, the confusion or deception is bound to result inasmuch as the packaging as well as the name used are more or less similar.
4. The learned counsel for the plaintiff has relied upon the decision in the case of Wyeth Lab. Ltd v. Lupin Lab. Ltd: 1996 PTC (16) and Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.: .
5. The learned counsel for the plaintiff also submitted that the offending products of the defendant, inasmuch as the purchasers felt that they were products of the plaintiff, have also resulted in causing damage to the reputation and goodwill of the plaintiff. He submitted that these items being intangible, the plaintiff has assessed it at Rs.20 lakhs. I have examined the plaint and the evidence by way of affidavit. Upon going through the same, I find no material to estimate or assess the quantum of such damages. In fact, the affidavit is silent on this aspect. However, I note that because of the infringements and passing off, there is no doubt that the plaintiff’s goodwill and reputation must have suffered a dent. There being no method of assessing the quantum in this case, I would hold the defendant liable to nominal damages which I quantify at Rs.25,000/-.
6. Having considered the plaint, the evidence in the form of affidavit as well as the submissions made by the learned counsel for the plaintiff, I feel that the plaintiffs are entitled to the grant of the following reliefs particularly because these averments and statements have gone uncontroverter:
i) The defendants, their officers, servants, agents or representatives shall be injuncted from making, selling and offering for sale, advertising, directly or indirectly, dealing in pharmaceutical preparations bearing the name ‘NELCIN PLUS’ and ‘NELCIN 500’ in the packaging as indicated in Exhibits P-5 and P-6;
ii) A decree for damages amounting to Rs.25,000/- towards loss of reputation and goodwill of the plaintiff and its products and costs of the proceedings. Decree be drawn up accordingly. If there is any deficiency in court fees, the same shall be made up by the counsel for the plaintiff.