Through : Mr.C.M.Lall, Advocate with Mr.Anuj Nair & Mr.Nancy Roy, Advocates v. EMIL PHARMACEUTICAL INDS. PVT. LTD ..... Defendant

1. The plaintiffs have filed the present suit for permanent injunction restraining infringement of trademark and rendition of accounts, damages and delivery up, etc. against the defendant with the following prayers: “a. A decree for permanent injunction restraining the Defendant, by himself, his servants, agents, assigns, etc. from manufacturing, selling, offering for sale, advertising, directly or indirectly dealing in pharmaceutical and medicinal preparations under the trade mark “COZOLE” or any other trade mark identical, deceptively and/or 2014:DHC:6537 confusingly similar to the trademark “COSOME” so as to infringe plaintiffs’ trademark registration No. 147029. b. A decree for delivery of all the impugned products as complained of herein above and all blocks, dies and all such articles employed by Defendants in applying the trademark “COZOLE” to the offending goods to an authorized representative of the Plaintiffs for destructions/erasure. c. An order for rendition of accounts of profit illegally earned by the Defendant and a decree for an amount so found due or in the alternative, a decree of ` 20,05,000/towards damages compensation including conversion damages may be passed in favour of the Plaintiffs and against the Defendant.”

2. As per the averments made in the plaint, the plaintiff No.1 is a reputed pharmaceutical company established over the past 300 years and is engaged in the manufacture and marketing of a wide range of pharmaceutical and medicinal preparations. Plaintiff No.2 is its Indian subsidiary. It is averred that the plaintiff No.1 is the registered proprietor of the trademark “COSOME” under registration No.147029 dated 20.01.1951 in respect of the pharmaceutical preparations under the provisions of the Trade Marks Act, 1999. Plaintiff No.2 has significant sale of its pharmaceutical preparations “COSOME” as depicted in para No.8 of the plaint.

3. It is pleaded that the defendant is also engaged in the manufacture and sale of pharmaceutical and medicinal preparations. In October, 2003, the plaintiffs came to know that defendant had adopted the trademark “COZOLE” with respect to its medicinal preparations through its advertisement in the Trade Marks Journal. (The plaintiff No.1 has filed an opposition to the said trademark application at the Trade Marks Registry.) It is averred that the defendant by use of deceptively and confusingly similar trademark “COZOLE” intends to deceive the trade and public into a belief that the preparations are those of the plaintiffs. The use of trademark “COZOLE” by the defendant amounts to an infringement of registration No.147029 (COSOME) of the plaintiffs.

4. None appeared on behalf of the defendant despite process issued. By an order dated 15.04.2013, the defendant was proceeded exparte. In IA No.11391/2012, the defendant, its servants, agents, assigns, etc. were restrained from using trademark “COZOLE” or any other deceptively similar trademark as that of the plaintiffs.

5. The plaintiffs have filed the evidence by way of affidavit of Mr.Vikas Gupta which is exhibited as Ex.PW-1/A. He has proved the documents Ex.P-1/1 to Ex.P-1/11. PW-2 is Vishal Kath, who has filed his affidavit Ex.PW-2/A.

6. I have heard the learned counsel for the plaintiffs and have examined the file. The evidence of PW-1 (Vikas Gupta) and PW-2 (Vishal Kath) has remained unchallenged and unrebutted. They have proved the averments in the plaint and documents Ex. P-1/1 to Ex.P-1/11. Adverse inference is to be drawn against the defendant for not appearing and contesting the present suit. No justification has been offered by the defendant for use of mark “COZOLE” which is deceptively and confusingly similar to the registered trademark “COSOME” of the plaintiffs without their permission. PWs have testified that the trademark “COZOLE” used and adopted by the defendant, is deceptively and confusingly similar to the plaintiffs‟ trademark.

7. The foremost thing to be considered is whether rival marks are deceptively similar and are likely to cause confusion in the mind of unawary purchasers. The purchasers are not expected to be well-versed with the chemical compositions of the medicinal preparations. It is well settled that while considering whether a mark is likely to deceive or to cause confusion, the question has to be approached from the point of view of a man of average intelligence and imperfect recollection.

8. In „Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd.’, 2001 (5) SCC 73, the Supreme Court after considering a large number of judgments of Foreign Courts and Indian Courts cautioned that strict measures to prevent confusion and lesser degree of proof is required for a Plaintiff to prove infringement in pharmaceutical cases if the marks are similar. In para 35, the Supreme Court observed as under: “35. Broadly stated, in an action for passing-off on the basis of unregistered trade mark generally for deciding the question of deceptive similarity the following factors are to be considered: (a) The nature of the marks i.e. whether the marks are word marks or label marks or composite marks i.e. both words and label works. (b) The degree of resembleness between the marks, phonetically similar and hence similar in idea.

(c) The nature of the goods in respect of which they are used as trade marks.

(d) The similarity in the nature, character and performance of the goods of the rival traders. (e) The class of purchasers who are likely to buy the goods bearing the marks they require, on their education and intelligence and a degree of care they are likely to exercise in purchasing and/or using the goods. (f) The mode of purchasing the goods or placing orders for the goods. (g) Any other surrounding circumstances which may be relevant in the extent of dissimilarity between the competing marks.”

9. In the instant case, the defendant‟s mark in respect of medical preparations “COZOLE” is phonetically and visibly similar to the registered trademark of the plaintiffs i.e. “COSOME”. It can be concluded that the defendant‟s mark is bound to create confusion in the mind of the public at large.

10. It is, therefore, evident that the defendant has infringed the registered trademark of the plaintiffs‟ and has passed of his goods as those of the plaintiffs.

11. The suit of the Plaintiffs is accordingly decreed in terms of prayers „a‟ and „b‟ of the prayer clause in the plaint with cost.

12. At the time of hearing, the reliefs of damages and rendition of accounts were given up by the learned counsel for the Plaintiffs.

13. The suit of the Plaintiffs is decreed in above terms.