The Hon’ble Delhi High Court in a recent judgement in the case of, Vior (International) Ltd. & Anr. v. Maxycon Health Care Private Ltd., held that the acts of the Defendants for unauthorized manufacturing and selling of patented product amounts to infringement of Plaintiffs rights granted under Section 48 of the Patents Act, 1970. Further, the act of the Defendants of blatantly copying the content of Plaintiffs website is in violation of the copyright vested with the Plaintiffs and amount to infringement as per Section 51 read with Section 14 of the Copyright Act, 1957.
(International) Ltd. (hereinafter referred to as ‘the Plaintiff No. 1’), a Switzerland based company, are exclusive owners of registered Indian Patent no. 221536, a product by process patent on Ferric Carboxymaltose, a novel water-soluble iron carbohydrate complex prepared by a novel process. The patented product is useful in the intravenous treatment of iron deficiency when oral iron preparations are ineffective or cannot be used. The Plaintiff 1 has granted a licensee to Plaintiff 2, a company incorporated under the Companies Act, 1956, for the manufacture and commercialization of above patented product, in India. Further, Plaintiff 2 is the owner of the copyright with respect to literary work on website the
The Plaintiffs filed a suit for restraining the Defendants from infringement of Indian Patent No.221536; infringement of copyright in the literary work; dilution & tarnishment of brand image of the Plaintiffs; malicious falsehood; delivery up; rendition of accounts; damages etc. against the Defendants.
Further, the Plaintiffs pleaded that the Defendants are manufacturing and selling the impugned patented product and falsely represented on their website that the Plaintiff no.1 has given an IP license to the Defendant no. 1 to manufacture and commercialize the impugned patented product.
Still, further, the Plaintiffs pleaded that Defendant no. 1 has blatantly copied the literary write-up/content of the Plaintiff No.2s website www.emcure.co.in, thereby amounting to infringement of the copyright of Plaintiff No.2. Such activities of the Defendant no.1 also amounts to dilution of the brand image of the Plaintiffs thereby resulting in unlawful enrichment.
Furthermore, the Plaintiffs pleaded that the Defendant No.1, despite the operation of an
ad-interim injunction against it, continued its infringing activities through the Defendant No.3 and under the able guidance of the Defendant No.2.
As none appeared on behalf of the Defendants despite service of notices hence the proceedings are treated ex-parte.
Whether the acts of the Defendants for unauthorized manufacture and sale of patented product amounts to infringement of Plaintiffs’ patent rights?
Whether the act of the Defendant no. 1 for misrepresenting on the website as being an IP license holder of impugned patent amounts to infringement of Plaintiffs’ patent rights?
Whether the act of the Defendant no. 1 for blatantly copying the content of the Plaintiff no. 2 website, amounts to infringement of Plaintiff no. 2’s copyright?
The Plaintiffs relying upon the evidence of sole witness, Shri Pankaj Pahuja (PW1) and the documents Ex. PW1/1 to Ex.PW1/23, Ex PW1/B, Ex.PW1/A1 to Ex.PW1/A5 as well as Mark E to Mark H, argued that the act of the Defendants are nothing short of oppressive, arbitrary and unconstitutional.
The Plaintiffs’ relying upon the decision by the Division Bench of Delhi High Court in paragraph number 69 and 70 of
Hindustan Unilever Limited v. Reckitt Benckiser India Limited, 2014 (57) PTC 495 [Del] [DB] claimed for damages to the tune of INR 1,00,01,000 (USD 142861 approx.). The Plaintiffs have claimed the rendition of accounts of profit illegally earned by Defendants or in the alternate damages to the extent of INR 1,00,01,000 (USD 142861 approx.).
Further, for claiming the punitive damages, the Plaintiffs relied upon the case of
Jockey International Inc & Anr. vs. R. Chandra Mohan & Ors. CS(OS) 253/2012, wherein it was held that one who chooses to stay away from the proceedings of the Court, should not be permitted to enjoy the benefits of evasion of Court proceedings. The damages in such case must be awarded.
Analysis by the Court on unauthorized manufacture and sale of patented product under misrepresentation as IP license holder
The Court while determining whether a patent has been infringed, took into consideration Section 48 of the Patents Act, 1970, and held that the act of the Defendants to deal with the impugned API clearly relates to the product Ferric Carboxymaltose as has been claimed by the Plaintiff No.1 in its independent claim 1. Further, such a product cannot be clinically effaceable without using the
process as claimed. The Court agreed with the Plaintiffs that the acts of the Defendants amount to infringement of the Plaintiffs’ rights.
Analysis by the Court on blatant copying of literary work
The Court while examining the issue of copying of literary work, took into consideration Section 51 read with Section 14 of the Copyright Act, 1957, and held that the act of the Defendant No. 1 of blatantly copying the content of the Plaintiff No.2’s website is in violation of the copyright vested with the Plaintiff No.2 and amounts to infringement of copyright by the Defendant No.1. The Court relied on the case of
R.G Anand vs M/S. Delux Films & Ors. and held that the literary work of Defendant No.1 in its website is substantially similar to the content of the Plaintiff No.2, thus, such an adoption is mala fide and is with a clear intention on the part of the Defendant to save himself of the labour. Moreover, the acts of the Defendant No.1 in publication of a statement indicating a false association with the Plaintiff No.1 amounts to a tort of malicious falsehood.
The Court also relied on the decision of Rookes v. Barnard (1964) and awarded damages that is not merely to compensate the Plaintiffs for the loss that has been sustained by reasons of the Defendants’ wrongful act, but also to punish the Defendants in an exemplary manner and vindicate the distinction between a willful and innocent wrongdoer.
Decision of the Court
The Court held that the act of the Defendants amounts to infringement of patent and copyright of the Plaintiffs. In view thereof, damages for a sum of INR 10,00,000 (USD 14284 approx.) in favour of the Plaintiffs and against the Defendants, is passed on account of infringing the registered marks, trade dress and violating interim order.
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