*1* s.2394.10.nms.2481.10 kps IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SUIT NO.2394 OF 2010 WITH NOTICE OF MOTION NO.2481 OF 2010 Zuventus Healthcare Ltd.. ..Plaintiff -Versus- Intas Pharmaceuticals Ltd. ..Defendant .......... Salil Shah a/w Ramesh Gajria i/b Gajria and Company, for the Plaintiff. Vinod Bhagat a/w Punit Jain, Dhiren Karania, Suryank Rao i/b G.S.Hegde and V.A.Bhagat, Nakul Sharedalal a/w for the Defendant. Defendant’s authorized signatory Mr.Antony Gonsalves, present in person. .......... CORAM : S.C.DHARMADHIKARI, J. DATE : 05th October, 2010. P.C. 1 This Notice of Motion was placed for ad-interim orders and on the earlier occasion, time was sought to file an affidavit. Accordingly, detailed affidavit in reply was filed by the Defendant and a copy of the same was served on the Plaintiff's Advocate. 2 However, it was stated that the Plaintiff and the Defendant are negotiating for overall settlement. 3 After deliberations, negotiations and discussions, despite the stand taken in the affidavit, the Defendant agrees to submit to a decree on admission, in terms of prayers (a) and (b) of the plaint. In other words, the Defendant admits that its acts amount to infringement of the Plaintiff’s mark. It is stated that there are existing stocks with the Defendant and the same have been declared in the consent terms. Further *2* s.2394.10.nms.2481.10 time is sought to exhaust this stock or to otherwise dispose of the same. 4 It is in such circumstances that the dispute between the Plaintiff and the Defendant in relation to the adoption of mark "AZITAS" by the Defendant is settled. It is stated that this mark will not be used by the Defendant in relation to their medicinal, pharmaceutical and veterinary preparations or any other goods falling under clause-5 of the Fourth Schedule to the Trade Marks Act, 1999. 5 The Plaintiffs have approached this Court on the basis that their registered trademark in relation to their product is "AZITUS". They have stated in the plaint that there is an infringement of their trademark "AZITUS". The infringement is by adoption and use by the Defendant of the mark "AZITAS". The argument was that addition or substitution of an alphabet "A" instead of "U" is not material. It is this dispute which is settled and the consent terms made in furtherance thereof are on this basis. 6 This clarification is necessary because the Defendant in the affidavit in reply has asserted that in the market the drug "Azithromycin" is available and several pharmaceutical preparations of reputed entities and companies with a prefix "AZI" are available. The details of the same are set out in the affidavit in reply particularly in paragraph Nos.21 and 22 thereof. 7 While accepting these consent terms, it is clarified that this Court has not opined on the merits of the controversy nor the submission to a decree on admission by the Defendant shall be construed as acceptance of the Plaintiff’s stand by this Court. The controversy mentioned in paragraph-6 above is kept open. Since the parties desire that the consent terms be taken on record as they put to an end to a limited controversy with regard to adoption and use by the Defendant of a mark *3* s.2394.10.nms.2481.10 similar to that of the Plaintiff's mark, that I have taken the consent terms on record and marked them as "X" for identification. 8 In the light of the above clarifications and finding that the consent terms or any order made in furtherance thereof will not contravene any provisions of law nor the agreement contravenes the public policy or adversely affects the public interest, the suit is decreed in terms of the consent terms. The undertaking of the Defendant in clauses 2 and 3 of the consent terms are accepted as an undertaking to this Court. Refund of the Court fees as per rules. No costs. 9 In view of the disposal of the suit, the Notice of Motion does not survive and the same is also disposed of. (S.C. Dharmadhikari, J)