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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
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