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SOS Pharma v/s SAS Pharmaceuticals


Company & Directors' Information:- K D L PHARMA LIMITED [Under Liquidation] CIN = U24231WB1989PLC047198

Company & Directors' Information:- R S M PHARMA PRIVATE LIMITED [Active] CIN = U85110KA1989PTC009974

Company & Directors' Information:- J P N PHARMA PRIVATE LIMITED [Active] CIN = U24230MH2004PTC145446

Company & Directors' Information:- U S PHARMA (INDIA) PRIVATE LIMITED [Active] CIN = U24230MH2003PTC140514

Company & Directors' Information:- V V L PHARMA PRIVATE LIMITED [Active] CIN = U24230MH2006PTC160047

Company & Directors' Information:- R K G PHARMA PVT LTD [Active] CIN = U74899DL1969PTC005111

Company & Directors' Information:- I G PHARMA LIMITED [Active] CIN = U24232DL2005PLC137560

Company & Directors' Information:- D L PHARMA PRIVATE LIMITED [Strike Off] CIN = U24230TG1996PTC023180

Company & Directors' Information:- SAS (INDIA) PRIVATE LIMITED [Amalgamated] CIN = U51109WB1982PTC034477

Company & Directors' Information:- A G L PHARMA PRIVATE LIMITED [Active] CIN = U24232TN2006PTC060592

Company & Directors' Information:- M R PHARMA PRIVATE LIMITED [Active] CIN = U24230MH1996PTC100199

Company & Directors' Information:- M C W PHARMA PVT LTD [Active] CIN = U24232MP1988PTC004693

Company & Directors' Information:- A B PHARMA PRIVATE LIMITED [Strike Off] CIN = U74899DL1987PTC028777

Company & Directors' Information:- N B PHARMA PRIVATE LIMITED [Active] CIN = U24239HR2002PTC034813

Company & Directors' Information:- G AND G PHARMA (INDIA) LIMITED [Active] CIN = U74899DL1995PLC070349

Company & Directors' Information:- B L PHARMA LIMITED [Active] CIN = U24230TG1998PLC029483

Company & Directors' Information:- Y L PHARMA PRIVATE LIMITED [Active] CIN = U24230HP2021PTC008443

Company & Directors' Information:- P R P PHARMA LIMITED [Strike Off] CIN = U24233DL2004PLC127606

Company & Directors' Information:- A D PHARMA PRIVATE LIMITED [Strike Off] CIN = U74899DL1984PTC017927

Company & Directors' Information:- M B AND K PHARMA PRIVATE LIMITED [Active] CIN = U85110UP1993PTC015566

Company & Directors' Information:- S.O.S. PHARMA PRIVATE LIMITED [Strike Off] CIN = U24231TG2001PTC037723

Company & Directors' Information:- D R L PHARMA PRIVATE LIMITED [Active] CIN = U74900DL2009PTC194144

Company & Directors' Information:- I PHARMA PRIVATE LIMITED [Strike Off] CIN = U24232KA2012PTC066464

Company & Directors' Information:- C & G PHARMA PRIVATE LIMITED [Strike Off] CIN = U24232KL2007PTC020840

Company & Directors' Information:- S D H PHARMA PRIVATE LIMITED [Active] CIN = U24100AP2021PTC118446

Company & Directors' Information:- SAS PHARMACEUTICALS PRIVATE LIMITED [Active] CIN = U51909MP2022PTC059796

Company & Directors' Information:- S K PHARMA PVT LTD [Strike Off] CIN = U24200TG1988PTC008219

Company & Directors' Information:- I B PHARMA PRIVATE LIMITED [Active] CIN = U51397DL2007PTC166799

Company & Directors' Information:- G B PHARMA LIMITED [Under Process of Striking Off] CIN = U24231TN2004PLC053082

Company & Directors' Information:- G R PHARMA PRIVATE LIMITED [Active] CIN = U85300MH2014PTC251911

Company & Directors' Information:- S B PHARMA PVT LTD [Strike Off] CIN = U74899DL1984PTC018041

Company & Directors' Information:- M S G PHARMA INDIA PRIVATE LIMITED [Active] CIN = U51109DL1998PTC093237

Company & Directors' Information:- P S A PHARMA PRIVATE LIMITED [Active] CIN = U74899DL1987PTC026593

Company & Directors' Information:- G D H PHARMA PRIVATE LIMITED [Active] CIN = U74899DL2000PTC105701

Company & Directors' Information:- G. V. PHARMA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U85100TG2010PTC071776

Company & Directors' Information:- P C INDIA PHARMA PRIVATE LIMITED [Strike Off] CIN = U24230MH2000PTC129963

Company & Directors' Information:- C T I L PHARMA PRIVATE LIMITED [Strike Off] CIN = U24230MH2005PTC157982

Company & Directors' Information:- M P PHARMA PRIVATE LIMITED [Strike Off] CIN = U51397MH2004PTC144622

Company & Directors' Information:- J B M PHARMA PRIVATE LIMITED [Strike Off] CIN = U24231TG2001PTC037890

Company & Directors' Information:- R M PHARMA PVT LTD [Active] CIN = U24230AP1986PTC006128

Company & Directors' Information:- S G K PHARMA PRIVATE LIMITED [Active] CIN = U52311UP2021PTC143177

Company & Directors' Information:- A S A PHARMA PVT. LTD. [Strike Off] CIN = U24231HR2001PTC034701

Company & Directors' Information:- F PHARMA PRIVATE LIMITED [Strike Off] CIN = U24239DL2003PTC120158

Company & Directors' Information:- M I PHARMA PRIVATE LIMITED [Active] CIN = U24239MH2009PTC190502

Company & Directors' Information:- S V J PHARMA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U24297MH2013PTC245885

Company & Directors' Information:- S G A PHARMA PRIVATE LIMITED [Strike Off] CIN = U51109MH2013PTC242911

Company & Directors' Information:- F. D. I. PHARMA PRIVATE LIMITED [Strike Off] CIN = U74120MH2013PTC240347

Company & Directors' Information:- B N L PHARMA PRIVATE LIMITED [Strike Off] CIN = U24239TG2003PTC040355

Company & Directors' Information:- B P N PHARMA PRIVATE LIMITED [Strike Off] CIN = U51397UP2003PTC028134

Company & Directors' Information:- S P D PHARMA PRIVATE LIMITED [Active] CIN = U52100UP2015PTC074941

Company & Directors' Information:- D M PHARMA PRIVATE LIMITED [Active] CIN = U33119CH2012PTC033815

Company & Directors' Information:- T S PHARMA PRIVATE LIMITED [Strike Off] CIN = U24100DL2011PTC226063

Company & Directors' Information:- R S V PHARMA PRIVATE LIMITED [Strike Off] CIN = U24232DL2009PTC186739

Company & Directors' Information:- S R J PHARMA PRIVATE LIMITED [Strike Off] CIN = U24239DL2004PTC124535

Company & Directors' Information:- J B J PHARMA PRIVATE LIMITED [Active] CIN = U74899DL2001PTC109186

Company & Directors' Information:- G S S PHARMA PRIVATE LIMITED [Active] CIN = U51102KA2015PTC082095

Company & Directors' Information:- L T & L PHARMA PRIVATE LIMITED [Active] CIN = U01132GJ2013PTC077595

Company & Directors' Information:- V 4 U PHARMA PRIVATE LIMITED [Strike Off] CIN = U51397KL2012PTC031740

Company & Directors' Information:- J S M PHARMA PRIVATE LIMITED [Active] CIN = U51397KL2014PTC037674

Company & Directors' Information:- R P PHARMA INDIA PRIVATE LIMITED [Active] CIN = U24290GJ2021PTC121186

Company & Directors' Information:- S I PHARMA PRIVATE LIMITED [Active] CIN = U24230MH2021PTC368265

Company & Directors' Information:- K PHARMA PVT LTD [Strike Off] CIN = U24239MH2006PTC165126

    RFA No. 695 of 2014

    Decided On, 19 February 2018

    At, High Court of Delhi

    By, THE HONOURABLE MS. JUSTICE PRATHIBA M. SINGH

    For the Appellant: Kawal Jyot Singh, Yogesh Gupta, Advocates. For the Respondent: A. K. Goel, Advocate.



Judgment Text

Oral:

1. This is an appeal against the final decree and judgment dated 11th December, 2014 by which a permanent injunction has been granted against the appellant in the following terms :-

“Vide separate judgment announced today, the plaintiff’s suit is decreed as follows:

(i) the plaintiff's suit for perpetual injunction is decreed in favour of plaintiff and against the defendant by restraining the defendant/its proprietor, its servants, dealers, representatives and agents/marketing and/or advertising of pharmaceutical or medicinal products or any other goods under the mark REGULATOR or any other mark identical or deceptively similar to the Plaintiffs registered trade mark REGULIN FORTIS amounting to infringement of the Plaintiff's trade mark REGULIN FORTIS registered under No. 1306019 with Trade Marks Registry;

(ii) the plaintiff's suit for perpetual injunction is further decreed in favour of plaintiff and against the defendant by restraining the defendant, its proprietor, servants, dealers, representatives and all other persons acting on their behalf from selling and/or marketing and/or advertising of pharmaceutical or medicinal products or any other goods under the impugned mark SOS PHARMA.

(iii) However, suit for delivery up of goods or of accounts of profits or damages/compensation in lieu of accounts for profits is dismissed.”

2. Counsel for the Appellant/Defendant (hereinafter, ‘Defendant’) submits that the Trade Mark “REGULATOR” has never been used by the Defendant and they are willing to give up the same rather than suffer an injunction for the mark. Submissions have been made only qua the trade name “SOS Pharma”, which is also used in a logo and device form. The trade mark application filed by the Defendant is for a device which uses the letter ‘S+S’ in a square form with the words ‘SOS Pharma’ below the same, and as follows:

3. Counsel for the Defendant submits that the trade mark application filed by the Defendant is prior to the trade mark application of the Respondent/Plaintiff (hereinafter, ‘Plaintiff’). The Plaintiff’s trade mark application for “SAS Pharmaceuticals” is dated 6th September 1999, whereas the Defendant's application for the above `SOS Pharma device’ is dated 19th March, 1999. He submits that his client is, therefore, entitled to use the mark ‘SOS Pharma’. On a query from the Court, counsel for the Defendant submits that ‘SOS’ stands for ‘Save our Soul’.

4. Mr. A.K. Goel, counsel for the Plaintiff submits that ‘SAS Pharmaceuticals’ is a registered trade mark and stands for Subhash and his son Sandeep who are the promoters of the company. Counsel for the Plaintiff further submits that the trade mark of the Plaintiff being registered, since both the parties are using it for the same class of products i.e., ayurvedic medicines, there is bound to be a confusion. He, accordingly, submits that the impugned decree is liable to the upheld.

5. After hearing some arguments, counsel for the Defendant upon instructions from the Defendant, Mr. Hitesh Dua, who is the proprietor of SOS Pharma, is agreeable to change the name and mark of his firm as “Save our Soul Pharma” instead of “SOS Pharma”. He also submits that his client may be given time to change over the name/mark.

6. After hearing the parties, it is clear that the Plaintiff’s mark “SAS Pharmaceuticals” is a registered trade mark. The parties are engaged in selling Ayurvedic products and hence they are in the same trade, Thus, "SOS Pharma" is likely to create confusion with “SAS Pharmaceuticals”. However, at the time of admission of the appeal, this Court, had on 24th December, 2014 granted a stay in respect of the injunction qua ‘SOS Pharma’. That stay order continues. In view of the order dated 2nd March, 2016 passed by this Court, the Defendant has been filing regular accounts before this court.

7. Since the Defendant is now agreeable to change the mark/name from “SOS Pharma” to “Save our Soul Pharma”, the impugned judgment and decree is modified in the following terms, with the consent of the parties :-

(a) The permanent injunction qua the trade mark “REGULATOR" as contained in part (i) of the decree is made absolute and is confirmed.

(b) The permanent injunction in para (ii) is confirmed, subject to the Defendant being permitted to use “Save our Soul Pharma” as the firm’s name and as trade mark.

(c) The Appellant shall be permitted to use the “S+S” device as contained in the trade mark application. However, in place of “SOS Pharma”, the words “Save our Soul Pharma” would be used both as a trade mark and as a trade name by the Defendant.

(d) The Defendant is permitted to use the present name ‘SOS Pharma’ till the end of the financial year 2018-19 i.e. 31st March, 2019.

(e) All the products and stocks as also the stationery shall be changed in accordance with the present consent terms and the Defendant shall not use the words ‘SOS Pharma’ in any manner whatsoever w.e.f. 31st March, 2019. If there are any left-over labels, stocks, stationery bearing the name “SOS Pharma” after 31st March 2019, the same be destroyed.

(f) The Defendant shall file an application under Form TM 16 within a period of eight weeks from today with the Registry of Trade Marks, amending its device in conformity with the present order. Upon the said application being filed, with an advance copy to the counsel for the Plaintiff, the Trade Mark Registry shall take the same on record and dispose of the opposition proceedings. The application of the Defendant shall then proceed for registration no.846424 in Class 5 with the device of S+S along with `Save our Soul Pharma'.

(g) The Defendant shall not adopt or use any name for its pharmaceutical preparation which is identical or deceptively similar to the Plaintiff’s trade mark “SAS Pharmaceauticals”. However

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, as contained above, the Defendant shall be entitled to use “Save our Soul Pharma” in the device. (h) Subject to the above undertakings being complied with by the Defendant, the Plaintiff shall not press for the relief of damages or rendition of accounts or costs. 8. The Defendant shall, by 15th March, 2019 write a letter intimating to the Plaintiff that they have changed their name/mark in all their products, stationery, display boards etc. from “SOS Pharma” to the new device with “Save our Soul Pharma”. The impugned judgment and decree stands modified, accordingly. 9. The appeal is disposed of as settled in the above terms.
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