Pharma Force Lab and anr Vs. Kepler Healthcare Pvt.Ltd. and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1096597
CourtKolkata High Court
Decided OnNov-08-2013
JudgeI. P. MUKERJI
AppellantPharma Force Lab and anr
RespondentKepler Healthcare Pvt.Ltd. and ors.
Excerpt:
order sheet in the high court at calcutta ordinary original civil jurisdiction original side ta no.101 of 2013 t no.250 of 2013 ga no.of 2013 cs no.of 2013 pharma force lab & anr versus kepler healthcare pvt.ltd.& ors.t no.252 of 2013 ta no.104 of 2013 ga no.of 2013 cs no.of 2013 sirmour remedies (p) ltd.& anr. versus kepler healthcare pvt.ltd.& ors.t no.253 of 2013 ta no.105 of 2013 ga no.of 2013 cs no.of 2013 mediforce healthcare pvt ltd.& anr. versus kepler healthcare pvt.ltd.& ors.t no.251 of 2013 ta no.102 of 2013 ga no.of 2013 cs no.of 2013 mankind pharma ltd.& anr. versus kepler healthcare pvt.ltd.& ors.before: the hon'ble justice i.p.mukerj.date : 8th november, 2013. appearance:mr.pratap chatterjee, sr.adv., mr.debal banerjee, sr.adv., mr.ranjan bachawat, adv., mr.atish ghosh, adv., mr.ravi kapoor, adv., mr.sayantan basu, adv., mr.prithviraj sinha, adv., mr.hemant daswani,adv., mr.arindam chandra, adv.mr.niladri bhattacharjee, adv.mr.rudraman bhattacharya, adv., ..for the plaintiff/petitioner. the court :-there is a great danger to the public, if one considers the facts pleaded. there is an imminent threat to their health unless the court immediately intervenes. this order is being passed not only for the protection of the plaintiffs but also for the protection of the public at large. the second defendant was an employee of the plaintiffs. he handled a lot of their confidential information. he was posted at gujarat. the plaintiffs are engaged in drug manufacture. as we all know a medicinal preparation contains an active ingredient or active ingredients. there are many manufacturers selling the same ingredient or a combination of ingredients under different trade names. what should not happen is sale of two different ingredients by one trade name or mark. it creates great confusion in the market. there is every possibility of deception or administration of a wrong drug. it has happened in this case. as i have understood, every manufacturer tries to coin a name for a particular product. in this case the plaintiffs had by their letter dated 12th march, 2013 entrusted this work to an organization called prompact. by their reply dated 18th march, 2013 this organisation suggested some names. they have prepared a table which contains the suggested names for the 11 active ingredients or combination thereof intended by the plaintiff to be sold as drugs. the table is inserted below to show the names suggested for each product: product amlodipine besilate vitamin d3 aceclofenac + paracetamol cetrizine hydrochloride metformin mecobalamin + vitamin b12fluconazole option-i amlodip d3flow acecet cetro metaboss bee12 fluzid option-2 amokav d3vit twagic cetcold moiser mecovit flutab terbutaline+bromhexine+guaiphenesin ondensetron rabeprazole cefpodoxime turbine keptron rebifine kepodil kep ondagud kepreb doxamine option-3 amlobest vitad3 nacodol nosier metro balamax keptafine (keep effective precaution to be fine) keptuss denben rabeforce xomadem the plaintiffs submit that on 18th march, 2013 this organization had also raised an invoice for rs.28, 350/- for suggesting the names. meanwhile it appears from the submission of mr.banerjee, learned senior advocate for the plaintiffs that on 11th april, 2013 the second defendant surreptitiously caused the firs.defendant to be incorporated with his wife as the director. this company ventured to make identical products as those of the plaintiffs and sell them in the market. the second defendant utilised all the confidential information it had regarding the suggested trade names for particular drugs of the plaintiffs. he caused the firs.defendant company to embark on manufacturing the self-same drugs. on 15th june, 2013, the second defendant resigned from the plaintiff companies with effect from 15th july, 2013. what is astounding is that he started utilising the trade names of the plaintiffs for his products, which he started marketing from october, 2013. the plaintiffs were using the trade names for their drugs from august, 2013. what is most dangerous for the public is what is stated in paragraph 32 of the petition. whereas the plaintiffs sell amlodipine besilate under the trade name amokav the defendant company sells amoxycillin and potassium clavulanate under the same trade name. now it is submitted that amlodipine is a drug for reducing hypertension whereas amoxycillin with potassium clavulanate is a powerful anti bacterial agent. similar is the case with the drug ‘nosier’. it is very much likely that a doctor will prescribe amokav intending to prescribe the drug manufactured by the plaintiffs for hypertension. when the patient goes to buy the drug from the pharmacist he may be handed over amokav manufactured by the defendant company, which is a strong anti bacterial agent. he buys a wrong drug, which has no beneficial effect on him. there is every likelihood of the drug causing serious damage to his health. now, the question is whose drug should be allowed to be sold in the market and whose drug is to be immediately stopped ?. there is no dispute that both the marks are unregistered. this is a passing off action but the evidence, prima facie, suggests that the plaintiffs have prior user from august, 2013 as opposed to the user of the defendant company from october, 2013. furthermore, an employee, who is alleged to have wrongfully utilised confidential information regarding trade names, as discussed above, cannot be said to be a bona fide user of any mark or name. this application was allowed to be moved ex parte on the submission made on behalf of the plaintiffs that if notice of this application was given to the respondents, they would immediately dispose of or sell the drugs manufactured and marketed by them. on the above prima facie case and findings an order in terms of prayers [b]., [d].and [e].of the notice of motion valid till 9th december, 2013. mr.r.n. bandopadhyay, advocate of bar association room no.2 and former joint secretary, ministry of law, kolkata, is appointed as the special officer at an initial remuneration of 1200 gms.to be paid by the plaintiffs for the gujarat work; mr.rajiv lall, advocate of 4 k.s.roy road kolkata-1, is appointed as the special officer at the same remuneration to be paid by the plaintiffs for the rajasthan work; and mr.deva prasad gangopadhyay, advocate of m/s.de & bose , 8/2 k.s.roy road, kolkata-1 is appointed as the special officer at the same remuneration to be paid by the plaintiffs for the kolkata work. each special officer is to file a separate report by the returnable date. i make it clear that only one remuneration is to be paid for the initial work at one place. in order to remove any confusion amongst the public, i direct the plaintiffs to widely circulate in the medical circle the composition of their drugs, so that the doctors or hospitals while prescribing the drug of the plaintiffs should either mention the active ingredient or the plaintiffs’ name to avoid any mistake in the identification of the drugs or in its sale. a compliance report is to be filed by the returnable date. i make this application returnable on 26th november, 2013. all parties concerned are to act on a signed photocopy of this order on the usual undertakings. (i. nm/pkd a.r.(c.r.) p. mukerji, j.)
Judgment:

ORDER

SHEET IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE TA No.101 of 2013 T No.250 of 2013 GA No.of 2013 CS No.of 2013 PHARMA FORCE LAB & ANR Versus KEPLER HEALTHCARE PVT.LTD.& ORS.T No.252 of 2013 TA No.104 of 2013 GA No.of 2013 CS No.of 2013 SIRMOUR REMEDIES (P) LTD.& ANR.

Versus KEPLER HEALTHCARE PVT.LTD.& ORS.T No.253 of 2013 TA No.105 of 2013 GA No.of 2013 CS No.of 2013 MEDIFORCE HEALTHCARE PVT LTD.& ANR.

Versus KEPLER HEALTHCARE PVT.LTD.& ORS.T No.251 of 2013 TA No.102 of 2013 GA No.of 2013 CS No.of 2013 MANKIND PHARMA LTD.& ANR.

Versus KEPLER HEALTHCARE PVT.LTD.& ORS.BEFORE: The Hon'ble JUSTICE I.P.MUKERJ.Date : 8th November, 2013.

Appearance:Mr.Pratap Chatterjee, Sr.Adv., Mr.Debal Banerjee, Sr.Adv., Mr.Ranjan Bachawat, Adv., Mr.Atish Ghosh, Adv., Mr.Ravi Kapoor, Adv., Mr.Sayantan Basu, Adv., Mr.Prithviraj Sinha, Adv., Mr.Hemant Daswani,Adv., Mr.Arindam Chandra, Adv.Mr.Niladri Bhattacharjee, Adv.Mr.Rudraman Bhattacharya, Adv., ..for the plaintiff/petitioner.

The Court :-There is a great danger to the public, if one considers the facts pleaded.

There is an imminent threat to their health unless the court immediately intervenes.

This order is being passed not only for the protection of the plaintiffs but also for the protection of the public at large.

The second defendant was an employee of the plaintiffs.

He handled a lot of their confidential information.

He was posted at Gujarat.

The plaintiffs are engaged in drug manufacture.

As we all know a medicinal preparation contains an active ingredient or active ingredients.

There are many manufacturers selling the same ingredient or a combination of ingredients under different trade names.

What should not happen is sale of two different ingredients by one trade name or mark.

It creates great confusion in the market.

There is every possibility of deception or administration of a wrong drug.

It has happened in this case.

As I have understood, every manufacturer tries to coin a name for a particular product.

In this case the plaintiffs had by their letter dated 12th March, 2013 entrusted this work to an organization called Prompact.

By their reply dated 18th March, 2013 this organisation suggested some names.

They have prepared a table which contains the suggested names for the 11 active ingredients or combination thereof intended by the plaintiff to be sold as drugs.

The table is inserted below to show the names suggested for each product: Product Amlodipine Besilate Vitamin D3 Aceclofenac + paracetamol Cetrizine Hydrochloride Metformin Mecobalamin + Vitamin B12Fluconazole Option-I AMLODIP D3FLOW ACECET CETRO METABOSS BEE12 FLUZID Option-2 AMOKAV D3Vit TWAGIC CETCOLD MOISER MECOVIT FLUTAB Terbutaline+Bromhexine+Guaiphenesin Ondensetron Rabeprazole Cefpodoxime TURBINE KEPTRON REBIFINE KEPODIL KEP ONDAGUD KEPREB DOXAMINE Option-3 AMLOBEST VitaD3 NACODOL NOSIER METRO BALAMAX KEPTAFINE (Keep Effective Precaution to be fine) KEPTUSS DENBEN RABEFORCE XOMADEM The plaintiffs submit that on 18th March, 2013 this organization had also raised an invoice for Rs.28, 350/- for suggesting the names.

Meanwhile it appears from the submission of Mr.Banerjee, learned senior advocate for the plaintiffs that on 11th April, 2013 the second defendant surreptitiously caused the fiRs.defendant to be incorporated with his wife as the director.

This company ventured to make identical products as those of the plaintiffs and sell them in the market.

The second defendant utilised all the confidential information it had regarding the suggested trade names for particular drugs of the plaintiffs.

He caused the fiRs.defendant company to embark on manufacturing the self-same drugs.

On 15th June, 2013, the second defendant resigned from the plaintiff companies with effect from 15th July, 2013.

What is astounding is that he started utilising the trade names of the plaintiffs for his products, which he started marketing from October, 2013.

The plaintiffs were using the trade names for their drugs from August, 2013.

What is most dangerous for the public is what is stated in paragraph 32 of the petition.

Whereas the plaintiffs sell Amlodipine Besilate under the trade name AMOKAV the defendant company sells Amoxycillin and Potassium Clavulanate under the same trade name.

Now it is submitted that Amlodipine is a drug for reducing hypertension whereas Amoxycillin with Potassium Clavulanate is a powerful anti bacterial agent.

Similar is the case with the drug ‘NOSIER’.

It is very much likely that a doctor will prescribe AMOKAV intending to prescribe the drug manufactured by the plaintiffs for hypertension.

When the patient goes to buy the drug from the pharmacist he may be handed over AMOKAV manufactured by the defendant company, which is a strong anti bacterial agent.

He buys a wrong drug, which has no beneficial effect on him.

There is every likelihood of the drug causing serious damage to his health.

Now, the question is whose drug should be allowed to be sold in the market and whose drug is to be immediately stopped ?.

There is no dispute that both the marks are unregistered.

This is a passing off action but the evidence, prima facie, suggests that the plaintiffs have prior user from August, 2013 as opposed to the user of the defendant company from October, 2013.

Furthermore, an employee, who is alleged to have wrongfully utilised confidential information regarding trade names, as discussed above, cannot be said to be a bona fide user of any mark or name.

This application was allowed to be moved ex parte on the submission made on behalf of the plaintiffs that if notice of this application was given to the respondents, they would immediately dispose of or sell the drugs manufactured and marketed by them.

On the above prima facie case and findings an order in terms of prayers [b]., [d].and [e].of the Notice of Motion valid till 9th December, 2013.

Mr.R.N.

Bandopadhyay, advocate of Bar Association Room No.2 and former Joint Secretary, Ministry of Law, Kolkata, is appointed as the Special Officer at an initial remuneration of 1200 GMs.to be paid by the plaintiffs for the Gujarat work; Mr.Rajiv Lall, advocate of 4 K.S.Roy Road Kolkata-1, is appointed as the Special Officer at the same remuneration to be paid by the plaintiffs for the Rajasthan work; and Mr.Deva Prasad Gangopadhyay, advocate of M/S.De & Bose , 8/2 K.S.Roy Road, Kolkata-1 is appointed as the Special Officer at the same remuneration to be paid by the plaintiffs for the Kolkata work.

Each Special Officer is to file a separate report by the returnable date.

I make it clear that only one remuneration is to be paid for the initial work at one place.

In order to remove any confusion amongst the public, I direct the plaintiffs to widely circulate in the medical circle the composition of their drugs, so that the doctors or hospitals while prescribing the drug of the plaintiffs should either mention the active ingredient or the plaintiffs’ name to avoid any mistake in the identification of the drugs or in its sale.

A compliance report is to be filed by the returnable date.

I make this application returnable on 26th November, 2013.

All parties concerned are to act on a signed photocopy of this order on the usual undertakings.

(I.

nm/pkd A.R.(C.R.) P.

MUKERJI, J.)