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M/s. Apex Laboratories Private Limited, Rep. by its Authorised Signatory, D. Jude F.L.S. Durai Pandian v/s Macleods Pharmaceuticals Limited, Mumbai


Company & Directors' Information:- MACLEODS PHARMACEUTICALS LTD [Active] CIN = U24239MH1989PLC052049

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:- APEX CORPORATION INDIA PRIVATE LIMITED [Active] CIN = U51109WB2007PTC114141

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:- APEX LABORATORIES PRIVATE LIMITED [Active] CIN = U85195TN1978PTC007554

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:- APEX (INDIA) LTD [Active] CIN = U63090WB1982PLC035478

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

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

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:- 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:- APEX INDIA PVT LTD [Strike Off] CIN = U51495WB1980PTC032617

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:- PANDIAN AND CO PRIVATE LIMITED [Active] CIN = U05110TZ1947PTC000150

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:- 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:- APEX PHARMACEUTICALS PVT LTD [Strike Off] CIN = U24231WB1976PTC030399

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

    O.S.A. (CAD) Nos. 141 & 142 of 2021

    Decided On, 05 July 2021

    At, High Court of Judicature at Madras

    By, THE HONOURABLE CHIEF JUSTICE MR. SANJIB BANERJEE & THE HONOURABLE MR. JUSTICE SENTHILKUMAR RAMAMOORTHY

    For the Appellant: R. Sathishkumar, Advocate. For the Respondent: P.S. Raman, Senior Counsel for M/s. Madhan Babu, Advocate.



Judgment Text

(Prayer: Appeals filed under Section 13 of the Commercial Courts Act, 2015 against the order dated 23.02.2021 passed in O.A.Nos.418 and 419 of 2020 in C.S.No.232 of 2020.)Common JudgmentSanjib Banerjee, CJ.1. These appeals arise out of a common judgment and order dated February 23, 2021 passed at the final stage of an interlocutory application in a suit for infringement and passing off.2. The plaintiff is the appellant herein. The plaintiff is the registered owner of the word-mark BILTEN used as a medicine with the product Bilastine as its principal component. The product is sold as tablets and comes in strips and is described as “Bilastine Tablets 20 mg”. The defendant uses the mark BELATIN. The mark is not registered. The defendant’s product also comes as a tablet in strips and is described as “Bilastine Tablets 20 mg”. Both products are used as antihistamines.3. An ex parte injunction was obtained by the plaintiff on September 18, 2020 immediately upon the suit being received. What counted with the Court at such stage was that the plaintiff’s mark was registered and the plaintiff may have introduced the product in the market prior to the defendant’s launch or commercial sale of the defendant’s BELATIN.4. In the impugned judgment, the trial Court noticed that there was close proximity between the dates of application for registration of the two marks, the launch of the products and the commercial release thereof. Indeed, at paragraph 19 of the impugned judgment, the following dates have been recorded:“19. ...The above facts throw up for further discussion the following:(1) that the defendant had applied for registration on 21.06.2019;(2) that the plaintiff had applied for registration on 25.07.2019;(3) that both the plaintiff and the defendant had given in their application forms as propose to use their respective marks;(4) The defendant launched their product on 31.10.2019;(5) The plaintiff commenced commercial exploitation in November 2019; and(6) The defendant commenced commercial exploitation in February 2020.”5. The plaintiff says that the only reason furnished in the impugned judgment for vacating the subsisting injunction is found at paragraph 24 thereof. The plaintiff disagrees with the test formulated in the paragraph and the distinction made between an ordinary person seeking to purchase an article of commerce and a medical practitioner prescribing a particular medicine or drug. In the relevant paragraph, the trial Court has held that a different set of parameters needs to be adopted “by not just comparing the two products as is compared in cases ofproducts sold off a shelf or by comparing the similarities in names but by examining them through the looking glass of a registered medical practitioner.”The trial Court has reasoned that the medical practitioner would be aware of the efficacies of several available drugs in the field and would choose an appropriate drug for the patient. What the trial Court seems to suggest is that a medical practitioner would know the difference between BILTEN and BELATIN while prescribing the one or the other for a particular patient. Prima facie, such a test cannot be completely brushed aside. However, it must also be remembered that several similar sounding drugs or medicines may be generic and, to such extent, they may be interchangeable and the medical practitioner may prescribe one or the other without making any distinction or even the pharmacist may provide one or the other depending on the availability. In a sense, the trial Court appears to be justified that when it is the name of a medicine or drug, particularly one which is not available over the counter and without a prescription, the verisimilitude of the names may not create the kind of confusion that may occur if the product was an ordinary article of commerce where the imperfect recollection theory would operate with greater force.6. The plaintiff insists that since it is evident from the documents relied upon by the parties that it was the plaintiff who was the first to hit the market with its BILTEN tablets, the injunction already obtained should not have been vacated. There is substance in the plaintiff’s assertion in such regard that in a fifty-fifty situation where no injunction subsists, none may be issued if there is a genuine defence which is made out; but where an injunction subsists, something more must be demonstrated by the defendant to have it vacated than a mere arguable defence.7. The dates indicated in the relevant order are important in such context. Both products appear to be generic as they indicate the primary composition to be Bilastine. Both products are used as antihistamines.8. Ordinarily, the prior user of a product has a better right, where user is not necessarily the prior adopter of the mark, but the person who uses the mark with the product in the market. Again, the test is not as high as whoever is the earlier is entitled to protection against the other. The assessment is not made with a stopwatch, whereby an interim order is issued merely because one of the products was launched at 12 noon and the other at 6 pm or one was launched a week before the other was.9. At the end of the day, the substance of the actionable wrong is the attempt to cash in on the goodwill or the reputation of a mark or the efficacy of the product associated with the original mark. If such is the basis of the law in this branch, the mere fact that a product is launched one day before or the rival product enters the market three or four months down the line, makes little difference.10. The impugned judgment cannot be faulted since it finds the rights of the parties to be so evenly balanced so as not to be able to choose one ahead of the other for an injunction to continue, which is the veritable knell for the product injuncted. In such context, particularly to balance the equities, the middle path chosen by the impugned judgment and order appears to be justified and unexceptionable. It is generally the practice for a dir

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ection for accounts to be maintained so that in the event the plaintiff is successful in establishing exclusivity at the time of the trial, adequate compensation may be ascertained from the quantum of sales of the defendant’s product.11. For the reasons aforesaid, the judgment and order impugned dated February 23, 2021 does not call for any interference. It is hoped that the trial Court will find time to decide the suit as expeditiously as possible and not encourage any delay on the part of the defendant in the trial being conducted expeditiously.O.S.A.Nos.141 and 142 of 2021 are disposed of without any order as to costs. C.M.P.Nos.6361 ad 6382 of 2021 are closed.
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