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2013 (2) TMI 297 - HC - Indian LawsIdentical Trademark - Right in the trademark “Procare” - suit for permanent injunction seeking to restrain the Defendant from passing off, rendition of accounts and delivery up - Plaintiff stated that the trade name/corporate name “Procare” has been registered by the Defendant with the deliberate object of making illegal profit and for trading on the reputation and goodwill developed by the Plaintiff - Held that:- Documentary evidence which is unrebutted on record cumulatively establishes that the Plaintiff is the prior user of the trademark “Procare”, that it enjoys tremendous goodwill in respect of the said trademark and that the C&F agents, distributors, doctors and others related to the pharmaceutical industry identify the said mark with the Plaintiff’s products. There is nothing on record to suggest that the Defendant who is in the same trade as the Plaintiff did not have any express or constructive knowledge of prior adoption and use of the trademark “Procare” by the Plaintiff. The Defendant’s contention that it has never used “Procare” as a trademark and is being used by it only as a firm’s name or trading style is also belied from the documents one of which is a sample of Defendant’s packaging where the trademark “Procare” is used, albeit in a different style. The fact that the Defendant has got incorporated a company using the word “Procare” and is selling its products under the said trademark, which is identical to the trademark under which the Plaintiff is marketing its most prominent range of products, coupled with the fact that the Defendant is also engaged in manufacturing and marketing pharmaceutical/medicinal products implies that there is every likelihood of deception/confusion. In view of the fact that the medicines sold by the Plaintiff under its Procare division are for chronic care, especially cardiology, thyroid disorder and anti-hypertension, and in the event of any accidental negligence and/or confusion or deception the results can be catastrophic the dicta laid down in the case of Cadila Health Care Ltd. (2001 (3) TMI 928 - SUPREME COURT OF INDIA) that the test is to be applied strictly in the case of passing off of medicinal products squarely applies. The Court is, therefore, of the view that the adoption of the word “Procare” by the Defendant as a prominent part of its corporate name/trading style and as its trademark is likely to lead to confusion and/or deception in the minds of customers and others concerned with the pharmaceutical industry, theeby misleading them into believing that the medicinal preparations sold by the Defendant originate from the Plaintiff. Resultantly, the Plaintiff is held entitled to a decree of permanent injunction in its favour and against the Defendant - Procare Laboratories Pvt. Ltd. The Defendant, its principal officers, servants, agents etc. are restrained from in any manner using the Plaintiff’s trademark “Procare” or any other trademark which is deceptively similar to the Plaintiff’s trademark as a part of its corporate name and/or trading style or in any other manner as may constitute passing off of the Defendant’s medicinal preparations or products as those of the Plaintiff’s - damages in the sum of Rs. 5 lacs along with the cost of the suit are also awarded in favour of the Plaintiff and against the Defendant.
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