M/S. Fourrts (India) Laboratories Pvt. Ltd. v. M/S. Zeon Biotech

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 30.11.2022

CORAM

THE HON'BLE MR. JUSTICE M. SUNDAR C.S. (Comm.Div.) No. 159 of 2022 and O.A.Nos.491, 492 of 2022 and A.No.3440 of 2022 in C.S.(Comm. Div.)No.159 of 2022 M/s.Fourrts (India) Laboratories Private Limited Having Office at New No.172, Kamaraj Avenue II Street Justice Ramasamy Road Adyar, Chennai - 600 020 Represented by its Chief Executive - Finance & Business Development Mr.K.S.Vasu ... Plaintiff Vs.

1. M/s.Zeon Biotech Vatva, Ahmedabad - 382 445 Gujarat

2. M/s.Biotech Life Care 144-A, Gallops Ind. Park-2 Plot No.M/13, Chacharwadi Vasana, Ahmedabad - 382 210 Gujarat

3. M/s.Azillian Healthcare Pvt. Ltd., 60, 61 & 66, Skyline Infra Hub 1/23

B/h Intas Pharma, Matoda Patia Changodar, Taluka Sanand Ahmedabad - 382 220, Gujarat ...

Defendants Prayer: This Civil Suit is preferred under Order IV Rule 1 of OS rules and Order VII Rule 1 of the Code of Civil Procedure read with Sections 27, 134 and 135 of the Trade Marks Act, 1999 a) granting a permanent injunction restraining the defendants, by himself, his servants, agents, distributors, or anyone claiming through him from manufacturing, selling, advertising and offering for sale or providing services using the name PREPRO or any other similar Trade Mark name or similar sounding expression in any media and use the same in name board, invoices, letter heads and visiting cards or medicinal and pharmaceutical preparations by using any other trade mark/name which is in any way visually or deceptively or phonetically similar to the plaintiff's trade mark/name PREPRO and use the same in pouches, packets or use the mark in invoices, letters heads and visiting cards, website and internet advertising or any other trade literature or by using any other trade mark on medicinal or pharmaceutical products which is in any way visually, or phonetically similar to the Plaintiffs' registered Trade Mark No.

1458575 under class-5 or in any manner infringing the Plaintiff's registered Trade Marks referred herein.

b) granting a permanent injunction restraining the defendants by himself, agents, distributors or anyone claiming through or under him from manufacturing, selling advertising and offering for sale using the name PREPRO or any other similar Trade Mark name or similar sounding 2/23

expression in any media and use the same in name board, invoices, letter heads and visiting cards or medicinal and pharmaceutical preparations by using any other trade mark/name which is in any way visually or deceptively or phonetically similar to the plaintiff's trade mark/name PREPRO and use the same in pouches, packets or use the mark in invoices, letters heads and visiting cards, website and internet advertising or any other trade literature or by using any other trade mark which is in any way visually, or phonetically similar to the Trade Mark PREPRO or in any manner pass off the Plaintiff's goods.

c) directing the defendants to surrender to the Plaintiff all the pharmaceutical and medicinal preparations, packing material, cartons, advertisement materials and hoardings, letterheads, visiting cards, office stationery and all other materials containing/bearing the trademark PREPRO or other deceptively similar Trade Mark in respect of pharmaceutical and medical preparations.

d) for a preliminary decree in favour of the Plaintiff, directing the defendants to render an account of profits made by them by the use of the Trade Mark PREPRO in relation to medicine and for a final decree in favour of the Plaintiff for the amount of the profits found to have been made by the Defendants, after the Defendants have rendered accounts. e) directing the defendants to pay to the plaintiff the costs to the suit; and f) pass such further or other orders, as this Hon'ble Court may deem 3/23

fit and proper in the circumstances of the case and thus render justice; For Plaintiff :

Ms.J.Vennila For Defendants :

Mr.Amar D.Pandiya for D1 & D3 Mr.Hiren U.Trivedi for D2

J U D G M E N T

This consent judgment / common order is a product of compromise that has been arrived at between plaintiff and the three defendants. 2.Captioned matter is listed today under the cause list caption 'FOR REPORTING SETTLEMENT'.

3. In this consent judgment/common order, parties shall be referred to by their respective ranks in the main suit for the sake of convenience and clarity.

4. Today Ms.J.Vennila, learned counsel on record for sole plaintiff, Mr.Amar D.Pandiya, learned counsel on record for Defendants 1, 3 and Mr.Hiren U.Trivedi, learned counsel on record for second defendant are before this Commercial Division.

5. All the three aforementioned learned counsel submit in unison in one voice that the parties to the lis have arrived at a settlement i.e., settled the lis and have reduced the terms of settlement to writing by way of three 4/23

separate memoranda of compromise (to be noted, each of the memorandum of compromise is between plaintiff and each of the defendants). These 'Memoranda of Compromise' shall be collectively referred to as 'MOCs' and in singular as 'I MOC', 'II MOC' and 'III MOC' for the sake of convenience and clarity. To add clarity, it is made clear that I MOC dated 22.11.2022 is between plaintiff and first defendant, II MOC dated 10.11.2022 is between plaintiff and second defendant and III MOC dated 20.09.2022 is between plaintiff and third defendant.

6. Though all three MOCs are almost ad verbatim the same, this Commercial Division deems it appropriate to scan and reproduce all three MOCs (with respective dockets) and the same are as follows: 5/23

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7. All three aforementioned learned counsel request that a compromise judgment / decree may be made in the main suit in terms of the aforementioned MOCs. Be that as it may, all three learned counsel request for dispensing with presence of the parties before this Commercial Division and make the following submissions in this regard: a) Parties have signed the MOCs in the presence of each other;

b) Defendants will have to travel from Ahmedabad; c) Counsel for second defendant is travelling from Ahmedabad;

d) All three counsel have counter signed the MOCs after their resepective parties have signed the same;

8. Considering the nature of the matter and the terms of the compromise, in this case request for dispensing with the presence of the parties is acceded to. To be noted, it is a trademark infringement suit and the compromise is fairly simple. It is fairly simple as the defendants submit themselves to decree qua the injunctive reliefs limbs of the prayer and 21/23

plaintiff has given up other limbs pertaining to surrender of alleged offending material, accounts, costs and the residuary limbs of prayer.

9. Captioned main suit in C.S. (Comm.Div.) No. 159 of 2022 is disposed of in terms of said MOCs (three MOCs) which shall form part of this consent judgment and compromise decree to be drawn up. There shall be no order as to costs. Consequently, captioned three applications are disposed of as closed. There shall be no order as to costs in the applications also. 30.11.2022 Speaking Order/Non-speaking Order Index: Yes/No gpa 22/23

M. SUNDAR,J.

gpa C.S. (Comm.Div.) No. 159 of 2022 and O.A.Nos.491, 492 of 2022 and A.No.3440 of 2022 in C.S.(Comm. Div.)No.159 of 2022 30.11.2022 23/23