IN THE HIGH COURT OF DELHI AT NEW DELHI
  
  
  
  CS(OS) 1704/2012
  
  
  
  ISSAR PHARMACEUTICALS PVT LTD (ISSAR)
  
  ..... Plaintiff
  
  Through Mr C. Mukund, Adv. with
  
  Ms Rajeshwari H. and Mr Anshul Mittal, Advs.
  
  
versus
  
  
  
  VINOD DUA and ANOTHER ..... Defendants
  
  Through Nemo.
  
  CORAM:
  
   HON'BLE MR. JUSTICE MANMOHAN SINGH
  
  
  
   O R D E R
  
   31.05.2012
  
  
  
  I.A. No.10899/2012
  
  The original documents/certified copies/typed/clear copies of
  the documents be filed within eight weeks from today. The application is
  disposed of.
  
  CS(OS) No.1704/2012 and I.A. No. 10898/2012 (u/o XXXIX, R.1 and2 CPC)
  
  Let the plaint be registered as a suit.
  
  Issue summons in the suit and notice in the application to
  the defendants, on filing of process fee and registered A.D. covers
  within one week, returnable on 03.08.2012.
  
  The plaintiff has filed the present suit for permanent
  injunction retraining the infringement of patent, trademark and copyright
  etc. The plaintiff is a pharmaceutical company engaged in the business of
  research, manufacture and sale of Peptide based pharmaceutical products
  
  in India. It is stated in the plaint that plaintiff has developed several peptide based products which are in different stages of drug
  development for various indications. The plaintiff has launched several
  respected brands in India such as GENOPEP, NORMADERM and BINAFIN which
  are very popular with the medical community and patients. After
  intensive research of 7-8 years, Dr, Abburi Ramaiah developed a novel
  product for treatment of vitiligo and applied for patents at the Indian
  Patent Office and was granted patents for the products under Nos.186437,
  185703, 185613. The details of the inventions for which the patent is
  granted is given in para 4 of the plaint. The patents were valid and
  subsisting, having a term of 20 years. Dr. Abburi Ramaiah, assigned 50%
  of his rights in the inventions of Patent Nos.186437, 185703, 185613 to
  and in favour of the Managing Director of the Plaintiff, Mr. Ram Isanaka,
  who assigned all his rights in favour of the plaintiff by executing an
  appropriated Deed of Assignment. The plaintiff also filed appropriate
  Form 16 at the patent office for recordal of the assignment. Thus, Dr.
  Abburi Ramaiah and the plaintiff are the lawful owners of the patents
  No.186437, 185703 and 185613.
  
  Further, it is further stated by the plaintiff it started
  conducting various clinical trials after obtaining the requisite licenses
  and permissions for the concerned Drug Regulatory Authority in India and
  after it was granted license to market the drug in India, it decided to
  launch the product under the mark MELGAIN and obtained a Trademark
  registration in respect thereof. Thus, the plaintiff is the registered
  owner of the mark MELGAIN, registered under No.1074428 since the year
  2002. The plaintiff granted the license to Alkem Laboratories Ltd.,
  Mumbai to market the product MELGAIN all over India.
  
  Its further stated that defendant No.1 who is the Managing
  Director of defendant No.2 was President (Marketing and Sales) at Alkem
  Laboratories Ltd from 2003 to 2010, prior to joining defendant No.2. In
  December, 2010 the defendant No.1 being the Director of defendant No.2,
  approached the plaintiff for obtaining a license to market the product
  MELGAIN in India. The plaintiff shared and discussed all the information
  regarding the product MELGAIN with defendant No.1 on behalf of defendant
  No.2 and also provided samples of the product MELGAIN to defendant No.1.
  A non-disclosure Agreement was also executed between the plaintiff and
  the defendants to maintain complete confidentiality of the information
  received from the plaintiff regarding the patented decapeptide product.
  It was agreed between the plaintiff and defendant No.2 that the said
  product would be marketed in India under the mark MELSWIFT and the
  plaintiff would obtain registration for the said mark which would be
  licensed to the defendant No.2. Therefore, the plaintiff applied for
  registration of the mark MELSWIFT in India on 20.05.2011. However, after
  obtaining all the information regarding the decapeptde product, the
  defendants failed to carry forward the license agreement with the
  plaintiff.
  
  As per the plaintiff, in January 2012, it found out that the
  plaintiff is that a product under the trade name MELSWIFT is being sold
  by defendant No.2. According to the plaintiff the said product is a
  slavish copy of the patented decapeptide product of the plaintiff. The
  
  defendant Nos.1 and 2 have misappropriated the confidential information of the plaintiff and committed several breaches and infringed the
  intellectual property rights of the plaintiff by manufacturing and
  selling the patented decapeptide product MELGAIN under the guise of
  MELSWIFT. The defendants have also infringed the copyright of the
  plaintiff in respect of such text matter on the product labels, product
  inserts and cartons as the same was an original literary work developed
  by the plaintiff.
  
  It is stated on behalf of the plaintiff that the acts of the
  defendants not only infringe the patents rights of the plaintiffs, but
  also amount to misuse of confidential information, breach of trust and
  copyright and trademark infringement. The defendants, by such activities,
  are deceiving the public and causing immense harm and injury to the
  reputation and business of the plaintiff. Thus, the plaintiff is seeking
  an ex-parte interim injunction order restraining the defendants from
  dealing, in any product that infringes the claims of Indian Patent
  Nos.186437, 185703 and 185613 of the plaintiff or that incorporates the
  confidential information regarding the manufacture and sale of the said
  product including an active fragment of basic fibroblast growth factor
  for treatment of vitiligo which is also covered by the Indian Patent
  Nos.186437, 185703 and 185613 and further from infringing the registered
  trademark and the copyright of the plaintiff.
  
  In view of the above, it is prima facie clear that the
  adoption of the mark is not honest, thus, a strong case for grant of
  interim injunction is made out. In view of facts stated in the plaint
  and documents placed on record, I am of the view that balance of
  convenience lies in favour of the plaintiff and against the defendants.
  In case, the defendants are allowed to use the impugned mark in relation
  to its business, the plaintiff will suffer irreparable loss and business.
  Therefore, the defendants, its directors, employees, officers,
  servants, agents and all others acting for and on its behalf are
  restrained from making, selling, distributing, advertising, exporting,
  offering for sale, and in any other manner, directly or indirectly,
  dealing in any product that infringes the claims of Indian Patent
  No.186437, 185703, 185613 of the plaintiff. The defendants are also
  restrained from making, selling, distributing, advertising, exporting,
  offering for sale, and in any other manner, directly or indirectly,
  dealing in any product that incorporates the confidential and
  proprietary information regarding manufacture and sale of the product
  including an active fragment of basic fibroblast growth factor (bFGF)
  for treatment of vitiligo, which is also covered by Indian Patent
  Nos.186437, 185703, 185613.
  
  The defendants are further restrained from making,
  selling, distributing, advertising, exporting, offering for sale, and
  in any other manner, directly or indirectly, dealing in any product
  that infringes the registered trademark MELGAIN and/or in any manner
  using the mark MELSWIFT or a mark deceptively similar thereto.
  
  Compliance of Order XXXIX, Rule 3 CPC be made within one
  week. Dasti.
  
   MANMOHAN SINGH, J.
  
  MAY 31, 2012
  
  jk
  
  
  
  $ 46