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Dr. Reddys Laboratories Limited v/s Laborate Pharmaceuticals India Ltd.


Company & Directors' Information:- J F LABORATORIES LIMITED [Under Liquidation] CIN = U24232MH1988PTC049457

Company & Directors' Information:- B S P PHARMACEUTICALS LIMITED [Active] CIN = U24231GJ1987PLC009556

Company & Directors' Information:- LABORATE PHARMACEUTICALS INDIA LTD [Active] CIN = U24239HR1990PLC030835

Company & Directors' Information:- G P T PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24233TG2009PTC064156

Company & Directors' Information:- R R G LABORATORIES LIMITED [Strike Off] CIN = U24230DL1984PLC018691

Company & Directors' Information:- S R LABORATORIES PRIVATE LIMITED [Active] CIN = U24232TG2005PTC047885

Company & Directors' Information:- M S LABORATORIES LIMITED [Strike Off] CIN = U24100DL1993PLC051613

Company & Directors' Information:- B R LABORATORIES LIMITED [Active] CIN = U23209GJ1994PLC022124

Company & Directors' Information:- A N PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24233DL2000PTC108617

Company & Directors' Information:- B M K LABORATORIES PRIVATE LIMITED [Amalgamated] CIN = U99999MH1978PTC020294

Company & Directors' Information:- P AND B PHARMACEUTICALS LIMITED [Active] CIN = U24230MH1978PLC020846

Company & Directors' Information:- J P LABORATORIES PRIVATE LIMITED [Active] CIN = U73100PN1998PTC012528

Company & Directors' Information:- P & B LABORATORIES LIMITED [Active] CIN = U24110MH1964PLC013023

Company & Directors' Information:- THE INDIA COMPANY PRIVATE LIMITED [Active] CIN = U74999TN1919PTC000911

Company & Directors' Information:- D I LABORATORIES LTD [Active] CIN = U24239WB1986PLC041034

Company & Directors' Information:- E L C PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239DL1998PTC097310

Company & Directors' Information:- M. R. LABORATORIES PRIVATE LIMITED [Active] CIN = U24239TG2006PTC051263

Company & Directors' Information:- N B LABORATORIES PRIVATE LIMITED [Active] CIN = U24295MH1998PTC117004

Company & Directors' Information:- V C PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Active] CIN = U24230KL2012PTC031429

Company & Directors' Information:- C I PHARMACEUTICALS PVT. LTD [Active] CIN = U24233WB1988PTC045057

Company & Directors' Information:- M J PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24230MH1996PTC101370

Company & Directors' Information:- R. J. PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Under Liquidation] CIN = U24232RJ1994PTC008899

Company & Directors' Information:- R P L (INDIA) PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239DL2002PTC115402

Company & Directors' Information:- A N LABORATORIES PRIVATE LIMITED [Active] CIN = U85191MH2011PTC223368

Company & Directors' Information:- L S K PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231KA1990PTC011299

Company & Directors' Information:- P P PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232WB2003PTC096731

Company & Directors' Information:- F C PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239GJ2007PTC051567

Company & Directors' Information:- G D S J PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24239DL2001PTC109888

Company & Directors' Information:- S S M PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232RJ1982PTC002502

Company & Directors' Information:- S S PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24231UP1982PTC005587

Company & Directors' Information:- M A S PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U51397PB2004PTC027688

Company & Directors' Information:- A V PHARMACEUTICALS PRIVATE LIMITED [Amalgamated] CIN = U24232DL1999PTC098651

Company & Directors' Information:- P G PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U74899DL1990PTC039757

Company & Directors' Information:- E M PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24239MH1992PTC066216

Company & Directors' Information:- P C LABORATORIES PRIVATE LIMITED [Active] CIN = U24231BR1972PTC000950

Company & Directors' Information:- INDIA CORPORATION PRIVATE LIMITED [Active] CIN = U65990MH1941PTC003461

Company & Directors' Information:- B D PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24233WB2009PTC132243

Company & Directors' Information:- P C LABORATORIES PRIVATE LIMITED [Not available for efiling] CIN = U24231BR1973PTC000930

Company & Directors' Information:- A G D PHARMACEUTICALS PVT LTD [Strike Off] CIN = U24231KL1984PTC003885

Company & Directors' Information:- S T PHARMACEUTICALS PVT LTD [Strike Off] CIN = U51909WB1989PTC047031

Company & Directors' Information:- N V K PHARMACEUTICALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U24296UP2016PTC082942

Company & Directors' Information:- G K D PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231WB1999PTC089334

Company & Directors' Information:- C F PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231TN1982PTC009598

Company & Directors' Information:- M D PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232WB2008PTC121471

Company & Directors' Information:- U. D. LABORATORIES PRIVATE LIMITED [Active] CIN = U85100WB2007PTC115385

Company & Directors' Information:- I. S. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24306KA2016PTC097524

Company & Directors' Information:- A M PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24233KL2010PTC026018

Company & Directors' Information:- B. C. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U51900UP2018PTC109946

Company & Directors' Information:- M M PHARMACEUTICALS LIMITED [Strike Off] CIN = U24231TN1982PLC009714

Company & Directors' Information:- S AND S PHARMACEUTICALS INDIA PVT LTD [Strike Off] CIN = U24232CH1984PTC005799

Company & Directors' Information:- N C PHARMACEUTICALS PVT LTD [Strike Off] CIN = U24239HP1986PTC006997

Company & Directors' Information:- J B LABORATORIES PVT LTD [Active] CIN = U24232PB1993PTC013762

Company & Directors' Information:- R G PHARMACEUTICALS CO PVT LTD [Strike Off] CIN = U24231HP1978PTC003877

Company & Directors' Information:- G S LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U24231UP1999PTC024990

Company & Directors' Information:- M B LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U24231DL1999PTC098347

Company & Directors' Information:- B M G PHARMACEUTICALS PVT LTD [Under Liquidation] CIN = U24232WB1974PTC029532

Company & Directors' Information:- M S PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231UP1995PTC018120

Company & Directors' Information:- B G PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231OR2002PTC006872

Company & Directors' Information:- B L B LABORATORIES PVT LTD [Strike Off] CIN = U74999MH1986PTC038541

Company & Directors' Information:- D R P S PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232UP2004PTC028820

Company & Directors' Information:- K N B PHARMACEUTICALS LIMITED [Strike Off] CIN = U24239CH1996PLC018286

Company & Directors' Information:- J S I PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232UP1998PTC023778

Company & Directors' Information:- A AND N LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U24239TG1985PTC005901

Company & Directors' Information:- J. M .LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U85110DL1994PTC061158

Company & Directors' Information:- B I PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24231CH1997PTC019728

Company & Directors' Information:- J G PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24231DL1987PTC027452

Company & Directors' Information:- D.R. LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U85100DL1988PTC034029

Company & Directors' Information:- J N PHARMACEUTICALS LIMITED [Strike Off] CIN = U24230TG1996PLC023652

Company & Directors' Information:- B M K LABORATORIES PRIVATE LIMITED [Amalgamated] CIN = U36912MH2011PTC220030

Company & Directors' Information:- J AND J PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24119OR1973PTC000584

Company & Directors' Information:- C W C PHARMACEUTICALS PVT. LTD. [Active] CIN = U24231HR1990PTC030903

Company & Directors' Information:- A J S PHARMACEUTICALS (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24232KA1972PTC002273

Company & Directors' Information:- A C PHARMACEUTICALS PVT LTD [Active] CIN = U51397WB1970PTC027869

Company & Directors' Information:- R K PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232DL2006PTC154640

Company & Directors' Information:- A H LABORATORIES P LTD [Strike Off] CIN = U24232PB1990PTC010830

Company & Directors' Information:- A. PHARMACEUTICALS PVT LTD [Strike Off] CIN = U24232DL1999PTC100973

Company & Directors' Information:- A P LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U24233UP1974PTC003855

Company & Directors' Information:- N G PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24100MH2010PTC202028

Company & Directors' Information:- S V N PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24230MH2005PTC155731

Company & Directors' Information:- S. V. G. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24297MH2010PTC202540

Company & Directors' Information:- K. D. PHARMACEUTICALS PRIVATE LIMITED [Under Process of Striking Off] CIN = U74999UP2016PTC084198

Company & Directors' Information:- D S LABORATORIES PRIVATE LIMITED [Active] CIN = U85100WB2013PTC192872

Company & Directors' Information:- Y. R. PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232CH2011PTC032883

Company & Directors' Information:- A. B. PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U51909AS2012PTC011351

Company & Directors' Information:- N. S. PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U52311JH2007PTC012709

Company & Directors' Information:- J A PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232DL2005PTC136777

Company & Directors' Information:- S P R PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24232DL2005PTC137405

Company & Directors' Information:- P K LABORATORIES PRIVATE LIMITED [Active] CIN = U24239DL2004PTC127774

Company & Directors' Information:- D F L PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U51101DL2014PTC270743

Company & Directors' Information:- A R K PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U74120DL2014PTC266920

Company & Directors' Information:- N N PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U33111BR2012PTC018665

Company & Directors' Information:- V B LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U24232GJ2013PTC077087

Company & Directors' Information:- V AND B PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24290UP2020PTC133785

Company & Directors' Information:- M D PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U24290MH2021PTC360217

Company & Directors' Information:- A AND V LABORATORIES LIMITED [Strike Off] CIN = U24232DL1995PLC065731

Company & Directors' Information:- U V PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U99999MH1998PTC117667

Company & Directors' Information:- J. V. PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24239MH2009PTC189669

Company & Directors' Information:- K R R PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24232TG2008PTC062007

Company & Directors' Information:- A P PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24233TG2008PTC062019

Company & Directors' Information:- C K PHARMACEUTICALS PRIVATE LIMITED [Strike Off] CIN = U24233UP2007PTC033596

Company & Directors' Information:- B. S. LABORATORIES PRIVATE LIMITED [Strike Off] CIN = U24232UP1995PTC019060

    CS. (COMM). No. 545 of 2017

    Decided On, 11 April 2019

    At, High Court of Delhi

    By, THE HONOURABLE MR. JUSTICE JAYANT NATH

    For the Plaintiff: Ranjan Narula, Advocate. For the Defendant: Siddharth Bambha, Shyam D. Nandan, Advocates.



Judgment Text

(Oral)

IA No. 5337/2019 (for condonation of delay in filing the accompanying appeal)

For the reasons stated in the application, the delay in filing the accompanying appeal is condoned.

The application stands disposed of.

O.A. No. 37/2019

1. This appeal is filed seeking to impugn the order dated 13.02.2019 by which order the learned Joint Registrar has allowed the application filed by the plaintiff being IA No. 5444/2018 (wrongly noted as IA No. 5442/2018 in the impugned order) under Order 11 CPC seeking discovery and production of documents.

2. The case of the plaintiff is that the plaintiff is engaged in the business of manufacturing, marketing and selling, etc, pharmaceutical products. The plaintiff has a trade mark OMEZ. The grievance of the plaintiff is that the defendant is using deceptively similar carton and strip packaging bearing the mark OMECAP. It is stated that the mark OMEZ and its distinctive packaging is well known among the relevant class of customers, doctors and other healthcare professionals. It is pleaded that copying the said packaging by the defendant is an attempt to pass off OMECAP product as that of the plaintiff’s OMEZ. On 22.08.2017, this court passed an ex parte injunction stating that a prima facie case is made out and restrained the defendant from selling or offering for sale, etc. pharmaceutical preparations under the mark OMEZ having identical/similar trade dress or packaging as that of the plaintiff’s OMEZ product.

3. On 12.02.2018 with the consent of the learned counsel for the parties, the above interim order was confirmed.

4. Learned counsel for the defendant states that even prior to filing of the suit the defendant had changed the trade dress/packaging and are not using the impugned trade dress/packaging.

5. Learned counsel for the plaintiff however states that the defendant is a well known company and would be liable to pay damages in view of the fact that they knowingly passed off their product as that of the plaintiff.

6. In these circumstances, the plaintiff has filed the stated application under Order 11 CPC which essentially seeks details of the sale made by the defendant by trying to pass off its product in the impugned packaging

7. Learned counsel for the defendant/appellant has however stated that the impugned order is erroneous. He relies upon a judgment of a Coordinate Bench of this court in Titan Industries vs. Nitin P. Jain & Ors., 126(2006)DLT 132 to contend that normally in a matter like the present case, there would a spilt trial and first, this court should hear the matter only pertaining as to whether there has been a case of passing off the product by the defendant. It is only after recording such a finding this court would proceed to assess the damages/issue of rendition of accounts. He submits that presently, there has been no finding recorded by this court that the defendant is guilty of passing off its product as that of the plaintiff.

8. The Coordinate Bench of this court in Titan Industries vs. Nitin P. Jain & Ors., (supra) held as follows:-

“14. The court also noted that with a view to savings of cost, the practice has developed, in particular in intellectual property cases, when it is practicable, to have a "split trial". The action is divided into two stages. The first stage is the trial at which the issue is limited to that of liability, i.e. whether the plaintiff's rights have been infringed. The second stage, which is contingent upon liability being established at the first stage, is concerned with the question of assessment of damages and calculation of profits. In this way, the costs of exploring the issue of damages and profits is put off until it is clear that the defendant is liable and the issue really arises and requires determination. As a concomitant with this practice, there has likewise developed the practice of limiting discovery at the first stage to documents relevant to the issue of liability and excluding documents relevant only to the second stage. In this way the burden of discovery at the first stage is reduced, and the invasion of confidence necessarily involved in discovery is postponed and if liability is not established, entirely obviated: [see also Baldock v.Addison [1995] 1 W.L.R.158.]

15. Learned counsel for the defendants tried to urge that there is no practice of 'split trial' in this country and, therefore, the aforesaid provision is not applicable. This submission of learned counsel is reflective of ignorance on this part. The system of 'split trial' prevails in all those cases where relief of rendition of accounts or damages/mesne profits is made. In the first stage the court holds inquiry as to whether the right of the plaintiff is infringed or not and once it is so held, a preliminary decree for rendition of accounts is passed and at the second stage the evidence is led on the question of assessment of damages.

xxx

17. The aforesaid principles laid down by the English Courts on the claims for damages and/or account of profits are based on common law principle applicable in torts. Section 106 of the Act and its equivalent provision contained in Section 135 of the Trade Marks Act, 1999, are nothing but the legislative mandate to the aforesaid common law principles. Therefore, once this provisions states that the plaintiff can claim relief either for damages or relief for account of profits, reading the aforesaid principles into this provision it is also to be held that both the reliefs can be claimed in the alternative with right to the plaintiff to make an informed election between damages and profits in the course of trial in the light of information revealed on discovery and the evidence at the trial.”

9. I am not inclined to accept the contention of the learned counsel for the appellant. Firstly, this court has already recorded a prima facie finding that the impugned packaging was done by the defendant only for the purpose of trying to pass off its products as that of the plaintiff.

10. Apart from the above, in 2018, the Delhi High Court (Original Sides) Rules 2018 came into force. Admittedly, there is no procedure prescribed for spilt trial.

11. I may also note that in this case, the plaintiff has only sought a decree of damages of Rs. 1 crore. It has not sought rendition of accounts. Hence, it is not a case where a preliminary decree for rendition of accounts would be passed by the court under Order 20 Rule 16 CPC and it would be followed by appropriate directions for rendition of accounts.

12. In my opinion, for assessment of damages, the interrogatories that have been passed on to the defendant are in order and cannot be said to be faulted.

13. However, a perusal of the interrogatories would show that in para 6, the plaintiff seeks information on two aspects i.e. price quoted to the stockists an

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d manufacturing cost of the product under the impugned packaging. Similar, interrogatory No. 7 seeks information on profit margin of the products sold under the impugned packaging. In my opinion, these two aspects, namely, manufacturing cost of the product and the profit margin of the product are purely subjective. These can vary based on various circumstances. The defendant may for the purpose of assessing the cost of manufacturing and profit margin include in the manufacturing cost various aspects on which the plaintiff may not agree. It would be appropriate that these questions are deleted from the interrogatories. The appellant would comply with the balance interrogatories in terms of the order of the learned Joint Registrar. 14. The appeal stands disposed of.
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