Allowed

Haw Par Brothers International Ltd. and Ors. v. Sahyadri Pharmaceuticals

Bombay HC13 Feb 2012S/2524/1997

Case brief

AI extract

What is this about?

This judgment considered a suit for trademark infringement and passing off. The court found the defendant's marks deceptively similar to the plaintiffs' well-known mark. Due to the defendants' absence and cessation of business, the suit was decreed granting the injunctions claimed.

What did the court decide?

Suit decreed granting injunctions against use of trademark "Toll Tiger Balm" and associated devices; nominal damages granted; Court Receiver stands discharged.

Haw Par Brothers International Ltd. and Ors. Vs… — Intellectual Property | Bombay HC (2012)

s2524-97

vai

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION

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SUIT NO.2524 OF 1997

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Haw Par Brothers International Ltd. & Ors. ....Plaintiffs V/s. Sahyadri Pharmaceuticals ....Defendants

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Mr.Manish Saurastri with Ms.Mamta Chandan and Mr.Rahul Dhote i/b Shantilal & Co. for the Plaintiffs.

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None for the Defendants.

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CORAM : S.J. VAZIFDAR, J. DATE : 13TH FEBRUARY, 2012.

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P.C. :-

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The plaintiffs seek an injunction restraining the defendants from using the trademark “Toll Tiger Balm” and/or “Tiger Balm” and/or “Tiger” and/or the device of a tiger and/or any other mark and/or device which is identical with and/or deceptively similar in any manner whatsoever to that of the plaintiffs trademark “Tiger” / tiger mark and the device of a leaping tiger in relation to any medicinal preparation so as to pass off their goods as and for those of the plaintiffs. The plaintiffs have also sought an injunction restraining the defendant from using in relation to any medicinal preparation, the impugned label and/or carton and/or container with or without the said mark and/or device etc. Lastly, the plaintiffs have sought nominal damages in the

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s2524-97

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sum of Rs.1,00,000/-.

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The plaintiffs have not been served with a written statement by the defendants. There is a written statement on record, but the same is still under objection. The objections have not been removed.

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The plaintiffs led the evidence of one Govardhan Gajjal by filing his affidavit in lieu of examination in chief, dated 13th October, 2011. The plaintiffs have also filed a compilation of documents which are taken on record and marked “A” collectively. The defendants are absent and the evidence has remained unchallenged.

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Mr.Saurastri, the learned counsel appearing on behalf of the plaintiffs has invited my attention the plaintiffs marks, labels, wrappers etc. He has invited my attention to the impugned marks and labels.

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The plaintiffs’ marks comprises, inter-alia, of the words “Tiger” and “Tiger Balm”. The defendants have used the word “Toll Tiger Balm”. There is, therefore, clearly a deceptive similarity between the plaintiffs mark and the defendant’s mark. This possibility of deception is enhanced by the fact that the defendants have also used the identical device of a leaping tiger above the said words. Moreover, the defendants have also adopted the hexagonal-shaped carton adopted by the plaintiffs.

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The plaintiffs have, therefore, established their case regarding the deceptive similarity as regards the words, the labels and

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s2524-97

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the entire get-up of the cartons, packages and labels. The defendants have also copied the plaintiffs device of a white band above and below the device of the leaping tiger and the words. It is not necessary to deal with all the other similarities as the prominent and dominant features are deceptively similar, if not almost identical.

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Mr.Saurastri has also relied upon the sales figures of the plaintiffs products. The World-wide sales figures increased from US $5.5 million in 1976 to US $16 million in the year 1992. The sales figures in India increased from .50,00,000/- during the period October 1994 – March, 1995 to .7.00 crores during the period April 1996 – March 1997. In the absence of any evidence contrary to the same, I am inclined to accept the submission that the plaintiffs mark, device, logo have acquired the status of a well known mark and secondary significance and a trans-border reputation, whereby people in the trade and consumers associate the mark device etc. as those of the plaintiffs. In fact, they have a reputation in India itself. The plaintiffs have, therefore, established their reputation and goodwill therein sufficient to maintain successfully this action.

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The plaintiffs have claimed nominal damages of `. 1,00,000/-. In view of the defendants absence, I am inclined to draw an adverse inference that they have done so knowing that had they appeared and produced their evidence, the plaintiffs would have been able to establish damages at least to the extent claimed by them.

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s2524-97

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It would make no difference even if the written statement were to be considered. In the written statement, the defendants have stated that the suit is liable to be dismissed, as they had after the adinterim order stopped manufacturing the goods. Paragraphs 1(q), 8 and 9 indicate that the defendants had closed their business and complied with the requirements of the interim order and that therefore, the plaintiffs are not entitled to any reliefs. The impression that I gathered from the written statement therefore, is that the defendants have contended that they will not henceforth also pass off their goods as those of the plaintiffs.

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In the circumstances, the suit is decreed in terms of prayers (a), (b) and (f). Costs to be quantified as per Rules. For the purpose of implementing prayers (c), the Court Receiver shall continue in execution. After complying with prayer (c), the Court Receiver shall stand discharged, without further reference to Court and without passing accounts, but subject to payment of his costs, charges and expenses.

Haw Par Brothers International Ltd. and Ors. v. Sahyadri Pharmaceuticals

Case brief

What is this about?

What did the court decide?

Haw Par Brothers International Ltd. and Ors. v. Sahyadri Pharmaceuticals

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Coram

Case details

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