IN THE HIGH COURT OF DELHI AT NEW DELHI
NOVARTIS A.G. and ANR ..... Plaintiffs
Through Mr.Gopal Subramanium, Sr.Adv.
with Mr.Hemant Singh, Ms.Mamta R. Jha and Mr.Manish K. Mishra, Advs.
CIPLA LTD ..... Defendant
Through Mrs.Prathiba M. Singh, Sr.Adv. with
Ms.Bitika Sharma, Ms.Anusuya
Nigam and Mr.Vihan Dang, Advs.
HON'BLE MR. JUSTICE MANMOHAN SINGH
O R D E R
CS(OS) No.3356/2014, I.A. No.21704/2014 (u/o XXXIX R.1 and 2 CPC) and
I.A. No.21705/2014 (u/o XXVI R.9 CPC)
The defendant is stated to have filed the affidavit in terms of the
order dated 10th November, 2014. However, the same is not on the record.
Counsel to approach the Registry and shall see that the same is placed on
Learned Senior counsel appearing on behalf of the plaintiffs
submits that in the affidavit, though the defendant has disclosed the
total stock of the impugned trademark UNIBREZ, i.e. 23837 strips (each
has 10 tablets) but the batch number, the date of manufacturing and other
requisite details are not mentioned.
Learned Senior counsel appearing on behalf of the defendant agrees
to file an additional affidavit which would contain the full details in
this regard within one week, with an advance copy of the same to the
plaintiffs. Let the same be filed within one week.
Learned Senior counsel has also informed the Court that the
defendant has proposed to adopt the trademark INDAFLO in place of earlier
trademark used which is the subject matter of the present suit and the
defendant has no objection if a decree for permanent injunction is passed
in terms of paras 23(i) and (ii) of the plaint.
Learned Senior counsel appearing on behalf of the plaintiffs says
that the present suit be disposed of as settled between the parties,
however, the plaintiffs be not precluded to take the action against the
same very defendant with regard to patent infringement. In support of
his submission, learned counsel for the plaintiffs has also filed an
affidavit today in Court itself. The Court does not want to make any
comments on this aspect. Remedy, if available as against the defendant,
the same has to be decided on merit. The question of estoppal does not
arise in view of the compromise arrived at in the trademark matter.
In view of the aforesaid statement made on behalf of the defendant,
the decree for permanent injunction is passed in favour of the plaintiffs
and against the defendant. Paras 23(i) and (ii) of the plaint are
reproduced here as under:-
?(i) A decree for permanent injunction restraining the Defendant, its
directors, assignees in business, its distributors, dealers, stockists,
retailers, and agents from manufacturing, selling, offering for sale,
advertising, directly or indirectly dealing in medicinal preparations
under the impugned trade mark UNIBREZ or any other trade mark as may be
deceptively similar to the Plaintiff?s trade mark(s) ONBREZ amounting to
infringement and dilution of registered trade mark of the Plaintiff No.1;
(ii) a decree for permanent injunction restraining the Defendant, its
directors, proprietor or partners as the case may be, its assignees in business, its distributors, dealers, stockists, retailers, servants and
agents from manufacturing, selling, offering for sale, advertising,
directly or indirectly dealing in medicinal preparations under the
impugned trade mark UNIBREZ or any other trade mark as may be deceptively
similar with the Plaintiff?s trade mark ONBREZ which may be likely to
cause confusion and/or deception amounting to passing off and unfair
The rest of the prayers is not pressed by the plaintiffs. Decree be
drawn accordingly. Pending applications also stand disposed of.
MANMOHAN SINGH, J.
NOVEMBER 17, 2014/ka