VEE EXCEL DURGS and PHARMACEUTICALS(P) LTD Vs HAB PHARMACEUTICALS and RESEARCH LTD

IN THE HIGH COURT OF DELHI AT NEW DELHI   CS(OS) 1851/2008   VEE EXCEL DURGS and PHARMACEUTICALS(P) LTD ..... Plaintiff   Through : Mr. Anshuj Dhingra, Adv. versus   HAB PHARMACEUTICALS and RESEARCH LTD ..... Defendant   Through : None.   CORAM:    HON'BLE MS. JUSTICE HIMA KOHLI    O R D E R    05.09.2008   I.A.No.10721/2008 (exemption)   Subject to the plaintiff filing the original documents of the   photocopies placed on the record within four weeks, the application is allowed   and disposed of.   CS(OS) 1851/2008   The plaint be registered as a suit. Issue summons to the defendant, on   filing of process fee by the plaintiff within one week, by Regd. AD post,   through ordinary process as also by courier, returnable on 17th December, 2008   before the Joint Registrar for completion of service as also pleadings.   I.A.No.10920/2008 (u/O 39 R-1 and 2 of CPC)   Notice for the date fixed.   The plaintiff has filed the accompanying suit for injunction, retraining   infringement of copyright and trademark, etc., in respect of its pharmaceutical   product ?VEGA ASIA?, in which it enjoys registered trademark and the registered   copyright.   It is a case of the plaintiff that it is engaged in the business of   research, production, marketing and export of various pharmaceutical and   medicinal products and preparations. The present suit is confined to the claim   of the plaintiff in respect of its pharmaceutical product, ?VEGA ASIA? and the   artistic works known as ?ROCKET PACKAGING? and ?BLUE PACKAGING?. Counsel for   the plaintiff states that the plaintiff holds a valid and subsisting drug   licence for manufacture and sale of the drug ?VEGA ASIA?. The counsel for the   plaintiff further states that the plaintiff is also holder of a valid Import and   Export Code for exporting the drug ?VEGA ASIA?, which is meant for erectile   dysfunction disorders in the malehuman beings.   He submits that the mark ?VEGA ASIA? is a coined word with no descriptive   meaning and that it is a combination of two words, ?VEGA? and ?ASIA?. The   plaintiff is stated to have designed and created various artistic works for the   packaging of the aforesaid medicinal product and the same has been got   registered not only under the Copyright Act, but the trade name ?VEGA ASIA? has   also been registered in favour of the plaintiff with the Trademark Registry.   Counsel for the plaintiff states that the defendant is engaged in the   business of medicinal and pharmaceutical product and has started misusing the   intellectual property of the plaintiff in the aforesaid registered copyright and   trademark by producing and exporting the same product either in identical or the   deceptively similar packaging or with identical and deceptively similar names or   with a combination of both, so as to exploit goodwill and efforts of the   plaintiff company. It is stated that the defendant has started exporting   identical products as that of the plaintiff under ?ROCKET PACKAGING? and ?BLUE   PACKAGING? bearing titles ?VEGA? and ?VEGA 100? to various countries outside   India.   He submits that a perusal of the products shows the manner in which the   defendant is using the product and protected artistic work of the plaintiff and   also the packaging used by the plaintiff resulting in infringement of the   trademark and copyright of the plaintiff. He draws the attention of the Court   to paras 18 and 20 of the plaint, wherein the plaintiff has set out a   comparative chart showing the similarities between the plaintiff?s product and   the defendant?s infringing product. In view of the above, counsel for the   plaintiff states that the plaintiff is suffering immense loss of business and   goodwill on account of the illegal activities of the defendant and is entitled   to grant of an interim injunction.   Having perused the averments made in the plaint as also the documents   placed on the record, particularly, copies of the product of the plaintiff and   that of the defendant, this Court is of the opinion that the plaintiff is   entitled to grant of an ex parte ad interim injunction against the defendant.   Accordingly, till further orders, the defendant, its directors, agents,   representatives and assigns are restrained from using the name, ?VEGA ASIA?,   ?VEGA? or any other mark similar to that of the plaintiff?s and also from using   packaging the known as ?ROCKET PACKAGING? and ?BLUE PACKAGING? or any other   artistic work, design, outlay, colour scheme and get up which is deceptively   similar to that of the plaintiff?s packaging duly registered in its favour.   Provisions of Order XXXIX Rule 3 of the Code of Civil Procedure be   complied with within one week.   Dasti.   HIMA KOHLI,J   SEPTEMBER 05, 2008   sk/KA   14 ___________________________________________________________________________ IN THE HIGH COURT OF DELHI AT NEW DELHI   06.01.2009 35#   Present: None for the plaintiff.   Mr. Rajiv Nayyar, Sr. Adv. with Ms. Pratibha M. Singh,   Mr. Alankar Kirpekar and Ms. Archana Sachdeva, Advs. for the   defendant.    CS (OS) No.1851/2008   The plaintiff filed a suit for permanent injunction restraining   infringement of Copyright, infringement of trademark, rendition of accounts,   damages, delivery up etc. The said suit along with the interim application came   up for hearing on 05.09.2008 when in the main suit the summons were issued for   17.09.2008 and in the interim application being IA No.10720/2008 the notice was   fixed for the same day. Ad interim injunction was also issued which reads as   under:-   ?Accordingly, till further orders, the defendant, its directors, agents,   representatives and assigns are restrained from using the name, ?VEGA ASIA?,   ?VEGA? or any other mark similar to that of the plaintiff?s and also from using   packaging the known as ?ROCKET PACKAGING? and ?BLUE PACKAGING? or any other   artistic work, design, outlay, colour scheme   -2-   and get up which is deceptively similar to that of the plaintiff?s packaging   duly registered in its favour.?   The defendant filed the application under Order 39 Rule 4 CPC being IA   No.11669/2008 which was listed before the Court on 22.09.2008 when notice was   issued to the non-applicant which was accepted and the defendant was directed to   file the reply within four weeks with advance copy to the other side and the   matter was again listed before the Joint Registrar on 17.12.2008.   Another application under Order 39 Rule 4 CPC being IA No.14352/2008 for   vacation of the ex-parte ad-interim order dated 5.9.2008 was filed. The said   application was disposed of and due to the urgency shown by the defendant the   main application being IA No.10720/2008 and 11669/2008 (u/O 39 R 1 and 2 CPC and   u/O 39 R 4 CPC) were listed for 09.02.2009.   The defendant also challenged the ex-parte ad-interim order dated   05.09.2008 before the Division Bench by filing of an appeal under Order 43 Rule   1 CPC being FAO (OS) No.491/2008. The said appeal was disposed of with the   direction that the hearing of the application under Order 39 Rule 4 CPC and   another pending application shall be heard by the Single Judge   -3-   on 06.01.2009. The order passed by the Division Bench on 19.12.2008 is   reproduced hereunder:-   ?Mr. Nayar, learned Senior Counsel for the Appellant, strongly presses   that the interim injunction granted by learned Single Judge should be vacated   especially on the ruling of this Court in FAO (OS) 331/2007, decided on 26th   November, 2008 titled Ram Krishan and Sons Charitable Trust Ltd ?vs- IILM   Business School, where we had been so persuaded keeping in perspective   suppression of material facts.   Learned counsel for the Respondent submits that a Reply to the   Application under Order XXXIX Rule 4 of the Code of Civil Procedure 1908 (CPC)   shall be filed within three days from today, with an advance copy to learned   counsel for the Appellant. Learned counsel for the Respondent further submits   that this Appeal may be disposed of with the observation that all pending   applications shall now be listed before the learned Single Judge on 6th January,   2009 for hearing and that Respondent/ Plaintiff herein in CS (OS) No.1851/2008   shall not seek any adjournment on that date.   In view of the statement of learned counsel for the Respondent. Reply to   the Application under Order XXXIX Rule 4 of the CPC be filed within three days,   with an advance copy to the Appellant who may file   -4-   Rejoinder within three days thereafter. All pending applications be now listed   for hearing before the learned Single Judge on 6th January, 2009. No   adjournment shall be granted by learned Single Judge on the asking or on the   default of the plaintiff.   In these terms, the Appeal stands disposed of. Pending applications also   stand disposed of. Dasti.?   Today when the matter was circulated and shown in the typed   supplementary list no one appeared on behalf of the plaintiff. The learned   counsel for the defendant Ms. Pratibha M. Singh has informed the Court that the   learned counsel for the plaintiff is aware about the fixing of the matter before   this Court and she has also informed the other side that the matter would be   taken up at 2.00 pm.   When the matter was taken up at 2:00 PM still no one appeared on behalf   of the plaintiff and the same was again put up at 3:00 PM. In the meanwhile   another communication was given to the learned counsel of the plaintiff on phone   that the matter will be taken up at 3:00PM but no one appeared on behalf of the   plaintiff when the matter was called up.   I have gone through the pleadings, documents and averment of the   application under Order 39 Rule 4 CPC r/w 151 CPC for vacation of the ex parte   ad interim order the defendant has raised many grounds for vacation of   -5-   the ex parte ad interim injunction and has referred various paragraphs of the   written statement in which it has been stated that the plaintiff is guilty of   suppression of material facts as the plaintiff has not made the full disclosure   at the time of filing of the suit and obtaining the ex parte orders and the   plaintiff has also not come before this Court with clean hands.   One of the arguments of the defendant is that the defendant filed a suit   bearing Suit No.2426/2008 against one manufacturer M/s. Saviour Biotech Pvt.   Ltd. before the Bombay High Court seeking to restrain it from acts of   infringement of its trademark ?VEGA?. Vide order dated 07.08.2008 the ex parte   ad interim injunction was granted by the Bombay High Court against the said   manufacturer i.e. Saviour Biotech Pvt. Ltd. The Court Receiver was also   appointed to take possession of the infringed goods and as per the compliance   huge material was taken into possession under the trademark ?VEGA? by the Court   Receiver. It is argued by the learned Senior counsel for the defendant that the   plaintiff in the present case is the licensor of the said defendant i.e. Saviour   Biotech Pvt. Ltd. who was manufacturing the products on behalf of the present   plaintiff. It is also mentioned that the defendant?s application for   impleadment of the present plaintiff in the suit filed by the defendant in the   Bombay High Court is also pending.   -6-   The learned counsel for the defendant has argued that plaintiff himself   has filed the copy of the agreement between the plaintiff herein and M/s.   Saviour Biotech Pvt. Ltd. (defendant in suit no.2426/2008 pending in Bombay High   Court) and therefore, it is clear that the plaintiff has not disclosed the said   vital fact in the plaint about the earlier pendency of the suit filed by the   defendant in the Bombay High Court and in the injunction application, therefore,   the interim order is not sustainable. After hearing counsel for the defendant   and having gone through the pleading, it appears that the plaintiff has failed   to disclose the said fact in the plaint and in the interim application as   alleged by the defendant in its application under Order XXXIX Rule 4 CPC.   Considering the overall fact and circumstances of the matter, I feel that   till the next date of hearing i.e. 9th February, 2009 when the two applications   being IA No.10720/2008 and IA No.11669/2008 are listed for hearing, interim   order dated 5th September, 2008 granted in favour of the plaintiff is suspended.    January 06, 2009 MANMOHAN SINGH, J.   nn __________________________________________________________________________  IN THE HIGH COURT OF DELHI AT NEW DELHI   FAO(OS) 172/2009 and CM Nos. 6521/2009, 6522/2009 and 6523/2009   M/S VEE EXCEL DRUGS and PHARMACEUTICALS (P) LTD .... Appellant   Through: Mr.S.K.Bansal and Mr. Tarun Singla, Advocates. Versus   M/S HAB PHARMACEUTICALS and RESEARCH LIMITED ..... Respondents   Through : Mr. Rajiv Nayyar, Sr. Advocate with Ms. Pratibha M. Singh   and Ms. Archana Sahadeva, Advocates.   CORAM:    HON'BLE MR. JUSTICE MUKUL MUDGAL    HON'BLE MR. JUSTICE VALMIKI J. MEHTA    O R D E R    06.05.2009   Learned counsel for the appellant wishes to withdraw the appeal as he   wants to file an application for amendment.   The appeal along with all pending applications stand dismissed as   withdrawn.   MUKUL MUDGAL,J ___________________________________________________________________________ IN THE HIGH COURT OF DELHI AT NEW DELHI   (15)   CS(OS) 1851/2008   VEE EXCEL DRUGS and   PHARMACEUTICALS(P) LTD. ..... Plaintiff   Through Mr. Pankaj Kumar, Adv. versus   HAB PHARMACEUTICALS and RESEARCH LTD. ..... Defendant   Through Ms. Archana Sahadeva, Adv.   CORAM:    HON'BLE MR. JUSTICE MANMOHAN SINGH    O R D E R    12.10.2009   I.A. No. 10180/2009 (Order 6 Rule 17)   No reply to this application has been filed. In view of the order dated   6th May, 2009 passed by the Division Bench of this court in FAO(OS) No. 172/2009   and averment made in the application, this application is allowed. The   amended plaint is taken on record. IA stands disposed of.   I.A. No. 10181/2009 (Order 39 Rule 1 and 2)   No reply has been filed. Last opportunity is granted to the defendant to   file reply within two weeks from today. Rejoinder thereto, if any, be filed by   the plaintiff within two weeks thereafter.   List on 22nd January, 2010.   CS(OS) 1851/2008   The amended written statement be filed by the defendant within four weeks   from today. Replication thereto, if any, be filed by the plaintiff within four   weeks thereafter.   List on the date fixed.   MANMOHAN SINGH, J   OCTOBER 12, 2009   SD   ________________________________________________________________________