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2015 (3) TMI 325 - HC - Indian LawsInfringement of Trademark - Trademark application pending for disposal - Violation of common law rights - Punitive damages along with compensatory damages - Held that:- From the unchallenged testimony of the plaintiff, it can be concluded that the use of trademark “COLISPAS” being adopted and used by the plaintiff for the last more than 23 years in relation of the medicines and pharmaceutical preparations by the defendants for their products is bound to cause confusion and deception in the mind of the customers. No justification has been shown by the defendants No.1 & 2 for the use of similar trademark of the plaintiff for its medicinal products which has distinctive character and composition. The plaintiff‟s ex-parte evidence has established bona fide use of the trademark “COLISPAS” by them since long. The defendants No.1 & 2‟s use of the identical trademark “COLISPAS” without their approval for medicinal products amounts to infringement of the plaintiff‟s trademark “COLISPAS”. The rival marks are deceptively similar and are likely to cause confusion in the mind of unwary purchasers. The purchasers are not expected to be well-versed with the chemical compositions of the medicinal preparations. Adverse inference is to be drawn against the defendants who opted not to contest the suit and offer any plausible justification for user of the mark “COLISPAS”. Considering the facts of the present case, on the basis of the evidence placed on record, it has been established that the defendants indulged in passing off the goods with the mark “COLISPAS” to the public at large without taking permission from the plaintiff. Since, they have chosen not to appear, it may not be of any use to pass a decree of rendition of accounts. The plaintiff will nevertheless be entitled to the damages in the light of the judicial dicta observed in Times Incorporated [2005 (1) TMI 630 - DELHI HIGH COURT].The defendant No.3 has already settled the dispute with the plaintiff. No compensation / damages were claimed from him at that time. In the light of above discussion, I am of the view that the plaintiff has proved its case against the defendants No.1 & 2 and is entitled for the decree prayed for. Accordingly, the suit is decreed with costs in favour of the plaintiff and the defendants No.1 & 2 and their representatives are restrained from manufacturing, selling, trading and marketing medicinal and pharmaceutical products under the trademark “COLISPAS” or any other identical / similar mark. The plaintiff shall also be entitled to damages to the tune of ₹ 1 lac. -Decided in favour of appellant/ plaintiff.
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