*1* 31.nms4215.09.sxw skt IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION NOTICE OF MOTION NO. 4215 OF 2009 IN SUIT NO. 3125 OF 2009 Piramal Healthcare Limited ..Plaintiff -Versus- Endolabs Health Care Private Limited & Ors. ..Defendants .......... Mr.A.S.Kamat i/by M/s.Chitnis & Co., Advocate for the Plaintiff. None for the Defendants. .......... CORAM : S.J. KATHAWALLA, J. DATE : 25TH JANUARY 2011. P.C. 1 The plaintiff is the registered proprietor of the trademark ESGIPYRIN, which is registered in its favour under the registration No. 293710 of Class 5, in respect of medicinal and pharmaceutical preparations. The plaintiff’s registration of the trademark, 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 trademark EASIPYRIN (impugned mark). *2* 31.nms4215.09.sxw 2 The plaintiff states that it manufactures, markets and sells medicinal preparations under the trademark ESGIPYRIN, which comprises of a diclophenec and paracetamol combination. The plaintiff has in support of its assertion of goodwill and reputation in the trademark ESGIPYRIN, produced sales figures (page 29 of the plaint) and statement of promotional expenses (page 30 of the plaint), both for the years 2006-07 to 2008-09. The plaintiff has thus, prima facie established its proprietorship, goodwill and reputation in the trademark 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 (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.1 has been served and its factory in Roorkee, and defendant no.2 has been served both at its registered office in Indore and at its factory in Roorkee. 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 *3* 31.nms4215.09.sxw 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 EASIPYRIN is visually, structurally and phonetically deceptively similar to the plaintiff’s registered trademark ESGIPYRIN. Hence, I find a strong prima facie case of 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 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, for confirmation of the ad-interim injunction already granted in its favour. The Notice of Motion is hereby confirmed in terms of prayer clause (b) and the same is accordingly disposed off. [S.J. KATHAWALLA, J.]