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Cure Way Drugs v/s Sahajanand Health Care

    CS (COMM) No. 1075 of 2016 & I.A. No. 16227 of 2013

    Decided On, 24 May 2017

    At, High Court of Delhi

    By, THE HONOURABLR MR. JUSTICE MANMOHAN

    For the Plaintiffs: Sumit Rajput, Advocate. For the Defendant: R1 & R3, Shubham Shanker Saxena, Rajiv Shukla, Advocates.



Judgment Text

Oral

1. Present suit has been filed for permanent injunction restraining infringement of copyright, passing off, damages/rendition of accounts and delivery up etc. The prayer clause in para 33 of the plaint is reproduced herein below:-

"(i) a decree for permanent injunction restraining the Defendant, its directors, assigns in business, dealers, stockiest etc. from using the impugned Golden Ultimate Skin Cream, Golden Ultimate Soap carton/label/packaging or any other carton/label/packaging that may be a colourable imitation or substantial reproduction of Ultimate Skin Cream & Ultimate Soap cartons/labels/packagings in respect of their colour combination, get up, layout as arrangement of features as may amount to infringement of copyright of the Plaintiffs therein;

(ii) a decree for permanent injunction restraining the Defendant, its directors, assigns in business, dealers, stockiest etc. from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in Golden Ultimate Skin Cream, Golden Ultimate Soap under the impugned trade mark, carton/label/packaging or any other mark, carton/label/packaging or get up as may be deceptively similar with Ultimate Skin Cream, Ultimate Soap carton/label/packaging or set up as may lead to confusion or deception amounting to passing off of the goods/business of the Defendant for those of the Plaintiff or may constitute acts of unfair competition;

(iii) A decree for delivery up of all the infringing cartons/packagings, labels, printing materials, printing cylinders, blocks, dyes, articles etc. to an authorised representative of the Plaintiff for destruction/erasure.

(iv) An order for rendition of accounts of profit illegally earned by the Defendant and a decree for an amount so found due or in the alternative a decree for Rupees Twenty Lakhs (Rs.20,00,000) towards token damages may be passed in favour of the Plaintiff and against the Defendant.

(v) An order for costs in the proceedings;

(vi) any other order as this Hon'ble Court deems fit and proper in the facts and circumstances of this case."

2. On 08th October, 2013, the learned Predecessor of this Court had restrained the defendants, their partners/proprietor, their assignees in business, distributors, licensees and dealers from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in medicinal preparation/skin cream/soap etc. or any other medicinal products under the impugned trade mark Golden Ultimate packaging or any other packaging as may be a slavish or colourable imitation or substantial reproduction of Ultimate Skin Cream & Ultimate Soap packaging in respect of colour combination, get up, lay out and arrangement of features, amounting to infringement of copyright of the plaintiffs.

3. On 01st December, 2014, defendant No.2 was proceeded ex parte.

4. Defendants No.1 and 3 have filed their written statements.

5. In the written statements, it is stated that the defendants had no intention to infringe upon the copyright product of the plaintiff and that on acquiring knowledge of the fact that the name of the product i.e. Ultimate Skin Cream is registered under the Copyright Act and is protected, the defendants have dropped the idea of trading/supplying the same leave alone manufacturing it under the trade mark Golden Ultimate. The defendants have also undertaken not to initiate the production, manufacture or supply of any cream under the trade mark Golden Ultimate till the mark Ultimate Skin Cream of the plaintiff ceases to exist under the Copyright Act or any other law.

6. Today, learned counsel for defendants No.1 and 3 reiterates that he has no objection if the present suit is decreed in accordance with prayers (i) and (ii) of the prayer clause. He, however, states that he has no

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instructions with regard to award of compensation/damages. 7. Consequently, the present suit and application are decreed in accordance with prayers (i) and (ii) of paragraph 33 of the plaint along with actual costs incurred by the plaintiff. The costs shall amongst others include the lawyers fees as well as the amount spent on purchasing Court-fees. 8. Registry is directed to prepare the decree sheet accordingly.
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