Notice of Motion (L) No. 2599 of 2014 in Suit (L) No. 1082 of 2014. Case: Khursheed Anwar Mohammad Ali and Ors. Vs Merit Healthcare Pvt. Ltd.. Bombay High Court

Case Number:Notice of Motion (L) No. 2599 of 2014 in Suit (L) No. 1082 of 2014
Party Name:Khursheed Anwar Mohammad Ali and Ors. Vs Merit Healthcare Pvt. Ltd.
Counsel:For Appellant: Alankar Kirpekar and Janjire i/b. MAG Legal and For Respondents: Mahesh Mahadgut, Adv.
Judges:S. C. Gupte, J.
Issue:Code of Civil Procedure, 1908 (CPC) - Order XL Rule 1
Citation:2015 (61) PTC 457 (Bom)
Judgement Date:January 05, 2015
Court:Bombay High Court
 
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Judgment:

S. C. Gupte, J.

  1. The Notice of Motion is taken out by the Plaintiffs in a passing off suit, claiming appointment of Court Receiver for taking possession and control of the impugned goods and seeking a temporary injunction restraining the Defendant from passing of its goods as those of the Plaintiffs. By consent of the learned Counsel for the parties, the Motion is taken up for final hearing at the stage of the ad-interim application. In or about 2000, Plaintiff No. 1 had started the business of export and trading of pharmaceutical and medicinal products. Plaintiff No. 1 is the Promoter and Managing Director of Plaintiff No. 2. The Plaintiffs inter alia manufacture and market sildenafil citrate tablets used for treating the male erectile dysfunction. It is the case of the Plaintiffs that in February 2010, the Plaintiffs conceived the idea of the mark "PUREGREY-100" for marketing these tablets and engaged the services of a designer for designing the distinctive carton for their goods. The Plaintiffs rely upon the Deed of Assignment signed with the designer on 5 August 2010. It is the case of the Plaintiffs that the Plaintiffs have, after getting the carton designed with the trade mark PUREGREY-100 as an important constituent thereof, started selling their goods, namely, sildenafil citrate tablets, under the trade mark PUREGREY-100 with the use of the carton specially designed for the same. The Plaintiffs rely upon the particulars of their sales from June 2011 to July 2014. The aggregates sales are to the tune of Rs. 5.96 crores. It is the case of the Plaintiffs that in October 2014, the Plaintiffs came to know about the Defendant's goods, namely, sildenafil citrate tables of 100 mg potency under the mark POWERGRA-100 with a similar carton. On 11 October 2014, the Plaintiffs sent a cease and desist notice to the Defendant, which was replied by the Defendant on 10 November 2014. It is claimed by the Defendant in its reply that the Defendant is an exporter of all these goods and that the trade mark POWERGRA together with its art work has been provided to the Defendant by its overseas buyers. It is the case of the Defendant that the trade mark together with the art work has been in existence and use by the overseas buyers prior to December 2010. In these premises, the Plaintiffs have filed the present suit in November 2014.

  2. Learned Counsel for the Plaintiffs submitted that the Plaintiffs conceived and adopted the trade mark PUREGREY-100 in or about February 2010. The Plaintiffs devised the distinctive carton for marketing their goods under the trade mark by entering into an agreement with a designer and after getting the distinctive carton designed for marketing their goods with the trade mark being displayed in it, have been marketing their goods since June 2011. It is submitted that by reason of the extensive sales of the Plaintiffs' goods under the trade mark PUREGREY-100 and with the use of the carton, the said carton together with its colour scheme and trade dress together with the trade mark PUREGREY-100 have come to be associated exclusively with the Plaintiffs' goods and have acquired an enormous reputation and goodwill. It is submitted that the...

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