1. This suit is filed by the plaintiff seeking a decree of permanent injunction to restrain the defendants etc. from manufacturing, marketing, selling, offering for sale, advertising, directly or indirectly dealing in medicinal preparations under the impugned mark LULIBET or any other mark that may be visually, structurally or phonetically deceptively similar to the plaintiff's trademark LABEBET amounting to infringement of registered trademark of the plaintiff. Other connected reliefs are also sought.
2. The above matter came up for hearing on 4.1.2018 when the court passed the following order:-
"Written statement of the defendant no. 1 is taken on record.
The suit is listed for framing of issues if any and for hearing of the application for interim relief.
The counsel for the plaintiff and the senior counsel for the defendant no. 2 have been heard.
The counsel for defendant No. 1 adopts the arguments of the senior counsel for defendant No. 2.
The plaintiff has sued inter alia for permanent injunction restraining infringement of trade mark and passing off in relation to its medicinal preparation 'LABEBET' by the defendants by adoption of the mark 'LULIBET', also for medicinal preparation.
There is no interim injunction till now.
The counsel for the plaintiff on enquiry states that while the medicine of the plaintiff is for the ailment of hypertension and is marketed in tablet and injection form, the medicine of the defendants is for the ailment of fungal infection and marketed in ointment and spray form.
The senior counsel for the defendant No. 2 on enquiry, states that the defendant No. 2 is manufacturing the medicine 'LULIBET' and the defendant No. 1 is marketing the same.
I have enquired from the counsel for the plaintiff whether not in the aforesaid circumstances, there is no possibility of confusion and deception since the two medicines are for different ailments and since, to my knowledge, there is no medicine available in the form of ointment or spray for the ailment of hypertension.
The counsel for the plaintiff has argued (i) that the registration of the mark of the plaintiff is in Class-V and relating to pharmaceutical and medicinal preparations in general and not for the pharmaceutical preparation for the ailment of hypertension only; (ii) that thus Section 29(i) will apply; (iii) that the possibility of patients with the ailment of fungal infection consuming the tablet or being treated with an injection of the product of the plaintiff exists inasmuch as for such ailments medicines in tablet and injection form are also available; and (iv) reliance is placed on Cadila Health Care Ltd. Vs. Cadila Pharmaceuticals Ltd., MANU/SC/0199/2001 : AIR 2001 SC 1952.
Per contra, the senior counsel for the defendants No. 2 has (i) drawn attention to page 42 of the plaintiff's documents to show that the molecule of the medicine of the plaintiff 'Labetalol Hydrochloride IP 100 mg' and to page 6 of the defendants' documents to show that the molecule of the medicine of the defendants is 'Luliconazole'; (ii) has drawn attention to page 52 of the Part-I file to show that for fungal infection, large number of other medicines with the molecule name 'Luliconazole' are available; (iii) has relied on M/s. Panacea Biotee Ltd. Vs. M/s. Recon Ltd., MANU/DE/1200/1996 : AIR 1997 Delhi 244; and, (iv) has contended that the plaintiff in the plaint has admitted that the defendants also have applied for registration and has not opposed the application and is thus not entitled to injunction.
On enquiry, the couns........