1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. SUIT NO.3611 OF 1994 M/s. Biochem Pharmaceutical Industries .. Plaintiff. Vs. Bio-Ethicals Pharma Pvt. Ltd. ..Defendant. .... Mr. H.W. Kane for the Plaintiff. None for the Defendant. ... CORAM: DR. D.Y. CHANDRACHUD, J. 14th January, 2008. P.C. : 1. The suit is for infringement and passing off. Since 1985 the Plaintiff has been using the trademark “AMPILOX” upon its medicinal and pharmaceutical preparations containing AMPICILLIN and CLOXACILLIN. The Plaintiff has obtained registration of the mark in Class 5 and the registration continues to subsist. In June 1993, the Plaintiff learnt that the Defendant had commenced manufacturing and/or selling pharmaceutical preparations containing the same constituent under the trademark “AMPICLOX”. The suit was instituted after an advocate's notice dated 23rd June, 1993. 2 2. The Defendant had appeared at the interlocutory stage. By an order dated 17th September, 1997 the Motion for interim relief was made absolute. 3. The Defendant has not filed a written statement. An affidavit proving service of the writ of summons has been duly filed. 4. The Plaintiff has relied up the evidence of one its partners in lieu of the examination in chief and upon a compilation of the original documents. The documents include a certified copy of the registration certificate issued to the Plaintiff, a statement of the sales and of the advertising expenses duly certified by a Chartered Accountant. 5. In the absence of any written statement or defence, the claim of the Plaintiff has remained to be controverted. The trademark “AMPICLOX” adopted by the Defendant is deceptively similar to the established mark “AMPILOX” of the Plaintiff. The Plaintiff has a prior use of the mark. Particularly in a matter of medicinal preparations and in view of the judgment of the Supreme Court in Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. 3 (AIR 2001 SC 1952) any infringement and/or passing of must be dealt with strictly. The claim of the Plaintiff has been duly established on the basis of the material on the record. In paragraph 10 of the affidavit in lieu of examination in chief the Plaintiff has quantified the damages caused by the wrongful use of a deceptively similar mark by the Defendant at Rs.51,000/-. The suit is made absolute in terms of prayer clauses (a) to (d), save and except for the bracketed portion viz. prayer for accounts. Prayer clause (a) to (d) read as follows : “(a) that the defendant by itself, its servants, dealers and agents be restrained by a perpetual order and injunction of this Hon'ble Court from infringing the Plaintiff's trade mark AMPILOX registered under No.299425 in class 5 by using in relation to medicinal and pharmaceutical preparations the trade mark AMPICLOX or any other trade mark deceptively similar to the plaintiff's registered trade mark AMPILOX. (b) that the defendant by itself, its servants, dealers and agents be restrained by a permanent order and injunction of this Hon'ble Court from using the trade mark AMPILOX or any other trade mark deceptively similar to the Plaintiff's trade mark AMPICLOX and from using the strip/label shown at Exhibit E hereto or any other strip/ label visually similar to the Plaintiff's strip/label shown at Exhibit A hereto in relation to medicinal and pharmaceutical preparations so as to pass off its medicinal and pharmaceutical preparation as and for the medicinal and pharmaceutical preparation of the Plaintiff or in any other manner. (c ) that the defendant be ordered and decreed to pay to 4 the Plaintiff a sum of Rs.51,000/- or such other sum as this Hon'ble Court may deem fit and proper as and by way of damages for infringing the Plaintiff's registered trade mark AMPILOX ( and/or for passing off the defendant's goods as and for the goods of the Plaintiff or in the alternative the defendant be ordered and decreed to render true and faithful account of the profits made by it by sale of pharmaceutical preparation bearing the trade mark AMPICLOX and/or packed in strips/ label shown at Exhibit E hereto and to pay to the Plaintiff the sum found due on the taking of such accounts. (d) that the defendant be ordered and directed to deliver up to the Plaintiff for destruction the impugned strip/ label at Exhibit E hereto and all goods, labels, cartons, strips, advertising material, packing material, and other literature bearing the mark AMPICLOX.”