Devinder Gupta JUDGMENT
Devinder Gupta, J.
1. In the first application (I.A. 9739/94), the plaintiff prays for an injunction during the pendency of the suit restraining the defendants from using the word "Dolphin" or any other word deceptively/confusingly similar thereto as a part of the trade/corporate name of defendant No. 4 and by the other application (I.A. 1268/95), a prayer has been made by the plaintiff for restraining the defendants from raising money from the public under the impugned corporate name "Dolphin" and to stay their proposed public issue opening on 28th February, 1995.
2. The plaintiff has filed the suit for injunction to restrain infringement of registered trade mark and passing off its trade/corporate name and rendition of accounts etc. It is alleged that plaintiff Dolphin Laboratories Ltd. is a well known and reputed public limited company engaged since 1951, in the business of manufacturing and making of various types of drugs and pharmaceutical products. Its registered office is at Calcutta with branches in Bombay and Ahmedabad and sales offices in Calcutta, Hyderabad, Patna, New Delhi, Lucknow and Ahmedabad.
3. It is alleged that the plaintiff was incorporated on 9th July, 1951 & in 1952 it adopted its present corporate name (Dolphin Laboratories Ltd.). The range of products which the plaintiff manufactures/mercantise, inter alia, covers anti-biotics, anti haemorrhagics, haemostatics, lipotropic drugs, appetite stimulants, natural enzymes and amoebicides. plaintiff claims that it is the proprietor of more than 100 trade marks including "Dolphin" which is also the house mark of the plaintiff. Considerable amount has been spent over the years towards sale promotional activities to acquaint the medical trade and profession with its developments and innovations and in all such activities the word "Dolphin" the corporate name, trade mark and house mark of the plaintiff has prominently been identified. plaintiff's turn over exceeds Rs. 22 crores. The word "dolphin" constitute the key name and distinguishing feature of the plaintiff's corporate name duly registered with the Registrar of Companies and is use in the course of trade continuously for the last 42 years. As a result of the plaintiff's effort, in the course of trade the word" Dolphin "has become distinctive and exclusively identified with the plaintiff. Dolphin as trade mark and Dolphin as device is duly registered under Class 5 of the Trade and Merchandise Marks Act, 1958, (hereinafter referred to as "the Act").
4. The plaintiff also alleges that an application for recording its name as proprietor of mark "Dolphin" in Class 10 of the Fourth Schedule of the Act is pending. By virtue of wide spread use the plaintiff's mark/name "Dolphin" has become inextricably linked with the plaintiff in the eyes of the consumers and the pharmaceutical trade and the consumers associate the said mark/name exclusively with the plaintiff. The plaintiff is registered proprietor altogether of more than 100 trade marks, many of these trade marks have the prefix "Dolphin". In order to partly finance its activities, the plaintiff in the month of May, 1994 entered the capital market with a public issue of 18,25,000 equity shares aggregating to Rs. 3,65,00,000/- which was over subscribed by 77.80 times by the Indian Public and 5.26 time by non-resident Indians. It reflects on the reputation and goodwill enjoyed by the plaintiff and the level of public confidence. The plaintiff also claims that it has pioneered the introduction of several drugs in India, including Ethansylate formulation (a haemostatic drug) and Amoxycillin, (a broad spectrum anti-biotic). The plaintiff also enjoys 40% market share in India of anti-hemorrhages medicines administered for the purpose of controlling bleeding. plaintiff claims that its share are widely held by more than 12,000 share holders in India abroad and are listed and traded in Calcutta, Bombay and Ahmedabad Stock Exchanges. The plaintiff is a profit making dividend paying company and has successful track record and commands an excellent image in the pharmaceutical trade.
5. It........