In a Judgment dated 28th August, 2018 by the Bombay High court in the case of
Glen mark Pharmaceuticals Ltd…. Plaintiffs
Vs.
1. Curetech Skin care ……..defendant no.1
2. Galpha Laboratories Ltd….defendant no.2.
[Notice of motion (L) No.1890 of 2018 in COMIP(L) NO. 1063 of 2018]
The Court awarded Exemplary damages of Rs. 1.5 cores (appx. 2 lakh USD) against the defendants.
The Plaintiff Glenmark is one of the Generic durg major selling one of its medicine Anti fungal cream under its trademarks CANDID-B.
The defendant no..2 dishonestly copied the mark and started selling its Anti fungal Cream under a deceptively similar mark CLODID-.
The Defendant number 2 Galpha Laboratories for which the defendant number 1 Curetech Skin care was manufacturing the cream under Contract, was the one who has introduced the trademarks CLODID- for the impugned goods.
The defendants number 2 agreed to suffer the decree agreeing that they have infringed the trademarks Candid-B of the Plaintiffs by mistake.
The Ld. Judge S.J. Kathawalla permanently injuncted the defendant or any one selling through them from selling their impugned goods under the deceptively similar mark CLODID- which was held deceptively similar to trademarks Candid-B of the Plaintiffs.
So, now the only question was of the determination of the damages to be awarded to the Plaintiffs.
It came in to light during the case that the defendants no. 2 was a habitual offender and has been caught selling drugs under the marks similar to other well known marks for the sale of its medicines. It also came to light that in the past in the year 2003 on service of a cease and desist notice by the Plaintiffs for misuse of their trademarks ASCORIL by the same defendants i.e. defendants no.2 using a deceptively similar mark ASCODIL the defendants no.2 have given an unconditional apology and given an undertaking that they will never infringe the Plaintiffs right and will never use the mark ASCODIL in future.
Similarly attention was drawn by the Plaintiffs counsel that amongst other similar cases against the defendants no.2, in the year 2016 in a suit in Delhi High court titled Win Medicare private Limited vs. Galpha Laboratories Limited reported in 2016(65)PTC 506(DEL), the Delhi high court in its Judgment has observed that the Galpha Laboratories, is a habitual offender.
It was also pointed out that not only the defendants was a habitual infringer, but also there have been many instances where the medicinal products of the defendants have been found to be not of Standard quality by the Central Drugs Standard Control Organization.
In support of the same the Plaintiffs has submitted a compilation of documents and submitted that the said material is already in public domain.
The Plaintiffs counsel submitted that in view of the repeated dishonest conduct of the defendant no.2 though the defendant is ready to suffer decree, heavy costs should be imposed upon them so that the same may serve as a deterrent factor in future.
The Ld. Judge observed that generally, in these kind of cases of infringement of the trademarks, Copyright and passing off if the defendant appears and shows willingness to submit to the decree, the courts are generally lenient and allow the parties to settle the matter with no or nominal costs. The Ld. Judge observed however this one is not such a case. It is a case where the conduct of the Defendant no.2 is not only dishonest but also audacious and such which displays no regards to the rule of law.
In fact referring to the unconditional apology and unconditional in an earlier cease and desist notice to the plaintiffs in misuse of their other trademark Ascoril by adopting Ascodil, the Ld. Judge observed that after tendering an unconditional apology and an undertaking one is expected to be careful and while conducting its business, but the actions of the defendants are far from the being careful and cautious, and in fact are shocking and appalling.
Observing that the Defendant no.2 is not only a habitual offender but there have been instances when the medicinal products of the defendants no.2 have been found not to be of a standard quality.
It was observed that the consumers and the general public were being cheated by the defendant no. 2.
The Ld. Judge also observed that Drugs are not sweets. Pharma companies which provide medicines for health of the consumers have a special duty of care towards them. These companies in fact have a greater responsibility towards the general public.
The Ld. Judge observed that though the wrong doings of the defendant no.2 cannot be quantified in terms of money, I feel that in facts and circumstances of the case an amount of Rs.1,50,00,000/-(Rupees One Crore Fifty Lakhs only) is the appropriate amount of costs to be paid by the defendants no.2 alongwith the personal undertakings from the directors that the defendants. No.2 will immediately withdraw the impugned goods bearing the impugned trademarks Clodid and its variants from the market and destroy the same and will conduct their business by strictly abiding to the rules and regulations of the FDA and in future will not indulge in these kind of activities. The Defendants no.2 accordingly agreed to pay the costs as also furnish the undertakings. It was also ordered that the Costs of Rs. 1.5 Crore awarded in Plaintiffs favour be deposited in Kerala Chief Minister Distress relief fund since plaintiff wishes to donate the costs awarded to a charitable organization.