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Sun Pharmaceutical Industries Ltd., Nandanam, Chennai v/s CIPLA Ltd., Chennai

    O.S.A.(CAD) Nos. 8 to 13 of 2021

    Decided On, 06 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: Satish Parasaran, Senior Counsel, R.S. Rajesh, Advocate. For the Respondent: P.S. Raman, Senior Counsel, Premchandar, Advocate.



Judgment Text

(Prayer: Appeals filed against the common order of this Court dated 27.05.2021 in A.Nos.1982 of 2021 in O.A.No.283 of 2021, A.No.1980 of 2021 in O.A.No.282 of 2021, O.A.Nos.283, 282 and 281 of 2021 and A.No.1983 of 2021 in O.A.No.281 of 2021 respectively, in C.S.No.176 of 2021.)

Common Judgment

Sanjib Banerjee, CJ.

1. The matter pertains to the get-up and colour scheme of the packaging material used by the appellant in producing capsules used for treating respiratory problems.

2. The appellant is the defendant in the suit. The judgment and order impugned dated May 27, 2021, insofar as it dismisses the defendant’s vacating applications and makes the ad interim order absolute, is questioned on the ground that there are observations in the judgment which seriously prejudice the defendant and such observations were irrelevant in the context of the final order that has been passed.

3. It is apparent that the defendant sought to abandon the colour scheme and get-up used in its packaging material and adopt altogether different cartons or packaging material. Indeed, the defendant offered to abandon the packaging material objected to by the plaintiff. However, it is not for the Court to grant an advance permission to a person seeking to change the get-up or colour scheme or packaging material upon an infringement or passing-off action being brought; it is for the parties to agree on the change. The role of the Court is only to consider whether one offends the use of the other upon an action in such regard being brought.

4. The plaintiff complains that the injunction ultimately issued does not cover the entire ambit of the injunction sought. According to the plaintiff, a limited ad interim order was granted and since the Court was to consider the matter after notice, the plaintiff was satisfied with the limited ad interim order in the hope that the larger interim order sought would be granted at the final stage of the interlocutory proceedings. The plaintiff also points out that some of the observations in the impugned judgment will reflect that the trial Court intended to pass a larger injunction, but the operative part of the order restricts the injunction to what had been initially passed instead of incorporating the larger prayer made by the plaintiff.

5. Insofar as the order impugned continues the ad interim order passed, the same does not call for any interference. However, there are observations in the impugned judgment to which there is no sequitur; in the sense that these observations do not find any reflection in the operative part of the order. To the extent that such observations are contained in the impugned judgment, they may prejudice the defendant. Viewed from another angle, to the extent that these observations have not culminated in a larger injunction, the plaintiff may be aggrieved thereby, though there is no appeal preferred by the plaintiff as of now.

6. Accordingly, in the interest of justice, the defendant is permitted to apply afresh for vacating the subsisting order of injunction and for some of the observations that the defendant finds unpalatable to be removed from the judgment. If a fresh application for vacating the interim order is filed by the defendant, wherein it will be open to the defendant to rely on additional or further material, the trial Court should consider the matter afresh without being unduly influenced by the judgment and order impugned herein. Similarly, it will be open to the plaintiff to seek a larger injunction than the one passed at the ad interim stage and continued by the interim order. Again, the trial Court will

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consider the prayer for larger injunction uninfluenced by the judgment and order impugned herein. 7. It is made clear that nothing in this order should prejudice either the plaintiff or the defendant at the further hearing at the interlocutory stage. O.S.A.(CAD) Nos.8 to 13 of 2021 and C.M.P.Nos.9881, 9883, 9888, 9890, 9904 and 9906 of 2021 are disposed of without any order as to costs.
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