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2013 (8) TMI 468 - HC - Companies LawInfringement of Registered Trade Mark - Whether the Defendants had infringed the registered trade mark AMLOBET of the Plaintiff by using the mark - Held that:- The Defendants had indeed infringed registered trademark AMLOBET of the Plaintiff by using the mark AMLOVATE/AMLOVATE-A - there was phonetic similarity when both marks were pronounced – There was also a structural similarity in the marks - The two marks have to be compared as a whole - The two drugs are prescribed for treating the same symptom viz., high blood pressure – that makes even stricter the test of deceptive similarity leading to confusion in the mind of an average customer - A comparison of the two marks AMLOBET and AMLOVATE as a whole lends support to the Plaintiff’s case that there was an overall structural and phonetic similarity between the marks when examined from the point of view of a man of average intelligence and imperfect recollection - It was likely that one drug could be confused for the other [Cadila Health Care Ltd. v. Cadila Pharmaceuticals Ltd. 2001 (3) TMI 928 - SUPREME COURT OF INDIA ]. Passing off of Goods - Whether the Defendants were passing off their goods as those of the Plaintiff by using the mark - Held that:- The use by the Defendants of the mark AMLOVATE/AMLOVATE-A amounts to passing off the product of the Defendants as that of the Plaintiff - The adoption by Defendants of a phonetically and structurally similar mark more than a decade after the Plaintiff began marketing its product under the mark was dishonest - Section 65B (4) provided for an alternative method of proving an electronic record by producing the certificate of a person in whose custody the computer device in which the document was stored in an electric form remained. Territorial Jurisdiction - Whether the Court had territorial jurisdiction to try the present suit – Held that:- The Court negatives the plea of the Defendants that the Plaintiff was not carrying on business within the territorial jurisdiction of the Court - it had been operating its office at Delhi both for sales as well as liasioning purposes - The Delhi office personnel were employed for obtaining necessary approvals from the various regulatory authorities based in Delhi without which it cannot carry on its business. Damages - Permanent Injunction - Whether the Plaintiff was entitled to damages and if so to, what amount and from whom - the issue was answered against the Plaintiff - the Plaintiff would be entitled to the costs of these proceedings – The right of the Plaintiff to institute proceedings on that basis to recover the loss of profits was reserved - Rs.30,000 which will be paid by the Defendants to the Plaintiff - injunction Granted to the petitioner.
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