1 nms-4214-s-2936-09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi NOTICE OF MOTION NO. 4214 OF 2009 IN SUIT NO. 2936 OF 2009. Piramal Healthcare Limited. ..Plaintiff. vs. Endolabs Limited & Ors. ..Defendants. .... Mr. Ashish Kamat, i/b. Chitnis & Co., for Plaintiff. None for Defendants. .... CORAM : S.J. KATHAWALLA, J. DATE : 20TH JANUARY 2011. P.C. The Plaintiff is the registered proprietor of the trade mark ‘ESGIPYRIN’, which is registered in its favour under the registration No. 293790 of Class 5, in respect of medicinal and pharmaceutical preparations. The Plaintiff’s registration of the trade mark is valid and subsisting. The present Suit is filed by the Plaintiff, complaining of the acts of infringement and/or passing off committed by the Defendants by using the impugned trade mark ‘AGEPYRINE’ (impugned mark). 2. The Plaintiff states that it manufacturers, markets and sells medicinal preparations under the trade mark ‘ESGIPYRIN’ which comprises of a diclophenec and paracetamol combination. The Plaintiff has in support of its assetion of goodwill and reputation in the trade mark ‘ESGIPYRIN’ produced sales figures (page 29 of the Plaint) and statement of promotional expenses (page 30 of the 2 nms-4214-s-2936-09 Plaint), both for the years 2006-07 to 2008-09. The Plaintiff has thus, prima-facie established its proprietorship, goodwill and reputation in the trade mark ‘ESGIPYRIN’. 3. By an ex-parte ad-interim order dated 9th April 2009, this Court [Coram : A.P. Deshpande, J.] has granted to the Plaintiff ad-interim injunction in terms of prayer clause (b) of the Notice of Motion. By the said order, notice on the Notice of Motion was also issued to the Defendants. 4. Accordingly, notices of this Court dated 17th April 2009 were issued to the Defendants. I have considered the service report dated 12th May 2009, which states that Defendant No.2 has been duly served at its registered Office at Indore and Factory at Roorkee. I have Further considered service report of 12th June 2009, which states that Defendant No.1 having its address at Madhya Pradesh has been duly served. Accordingly, I find that both the Defendants stand duly served. Despite service, none appears for the Defendants. Further, the Defendants have not filed any affidavits in reply, to the Notice of Motion. In this view of the matter, the contents of the Plaint and/or Notice of Motion, remain undisputed. 5. The Plaintiff is the registered proprietor of the trademark ‘ESGIPYRIN’, which registration is valid and subsisting. On a comparison of the rival marks, I find that the impugned mark ‘AGEPYRINE’ is visually, structurally and phonetically deceptively similar to the Plaintiff’s registered trade mark ‘ESGIPYRIN’.s Hence, I find a strong prima-facie case for infringement, in the Plaintiff’s favour. Considering that both the rival products are pharmaceutical preparations, a strict test is liable to be applied, and the balance of 3 nms-4214-s-2936-09 convenience is in the Plaintiff’s favour. The Plaintiff would suffer irreparable injury and prejudice, if the interim injunction is not granted. 6. In the circumstances aforesaid, a strong prima-facie case has been made out by the Plaintiff, to seek confirmation of the ad- interim injunction already granted in its favour. The Notice of Motion is hereby confirmed in terms of prayer (b), and the same is accordingly, disposed of. [ S.J. KATHAWALLA, J. ]